Eli E. Hertz - Myths and · PDF fileEli E. Hertz January 2006 Enhanced Edition ... Appendix B: UN Resolutions Regarding Terrorism: 1269, ... Bench rendering the Advisory Opinion in

TO:

THE ADVISORY OPINION OF 9 JULY 2004I N T H E M A T T E R O F T H E

LEGAL CONSEQUENCES OF THECONSTRUCTION OF A WALL IN THEOCCUPIED PALESTINIAN TERRITORY

A S S U B M I T T E D B Y T H EINTERNATIONAL COURT OF JUSTICE

No distinction rests between genocide and the undoing of the State of Israel by the International Court of Justice at the Hague.

To suggest denying Israel’s right for self-defence in favor of Palestinian terrorism, is a crime against humanity.

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Eli E. HertzJanuary 2006

Enhanced EditionMyths and Facts, Inc.

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Even the most sacred precepts of international law can be manipulated to pervert the truth. In its Advisory Opinion of 9 July 2004, the UN's Interna-tional Court of Justice ruled that Israel's security fence to protect civilian populations from barbarous terror was in violation of international law.

The ICJ ruled that the inconvenience of the fence for Palestinians was more serious than the lives of Jewish children systematically murdered by Palestinian terrorists.

An informed “Reply” to this jurisprudential mockery by the World Court has been prepared by Eli Hertz of New York City. Not a lawyer, Hertz applied his considerable intellectual talents to a meticulously researched and academically refined rejoinder - one that should be read not only by the members of the Court and other UN officials, but also by the broader community of international law scholars.

Eli Hertz has prepared an important and valuable document for all who would seek justice and fairness in our corrupted legal universe. It deserves a wide and very careful reading.

Louis Rene Beres(Ph.D., Princeton University, 1971, International Law)

Professor of International Law, Purdue University

The ICJ advisory opinion on Israel's security fence was a legal travesty denying the people of Israel their inherent right to self-defense and, at the same time, ignoring their historical national rights that the UN and the League of Nations once readily recognized. Eli Hertz has done an enormous service by providing a cogent point-by-point rebuttal and, by doing so, not letting this terrible document stand without a reply.

Ambassador Dore GoldFormer Permanent Representative of Israel to the United Nations

Myths and Facts, Inc. | PO Box 941 | Forest Hills, NY 11375 | www.MythsandFacts.org

US $ 14.95

About the author

Eli Hertz is the President of Myths and Facts, Inc. a nonprofit organization devoted to research and publica-tion of information regarding U.S. global interests - particularly in the Middle East. Hertz published and sponsored books and articles regarding the Arab-Israeli conflict. Most notably are “Partners for Change, How U.S.-Israel Cooperation Can Benefit America” (1993), “Myths and Facts, a Guide to the Arab-Israeli conflict” (September, 2001 edition), and “Who is Humiliating Whom.” A new volume on the Arab-Israeli conflict “Negotiating Over Quicksand - A Realistic Look at the Arab-Israeli Conflict,” is scheduled for release shortly. Hertz is also a recognized pioneer in the personal computer industry. He has authored and published many technology-related articles and books. Marketing Computers, an ADWEEK magazine, stated “Hertz is a barometer for the future.” Hertz is actively involved in numerous international, industry and community associations and panels, and devotes a great deal of time and resources to charity.

This publication uses Internet links extensively. If you experience a broken link, please note the 5 digit number (xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com, the primary Search Engine for Middle East facts.

To my wife Marilyn and my children Etie, Mala and Danny,thank you for your love and support

Copyright © 2005, 2006 Myths and Facts, Inc. and Eli E. Hertz

All rights reserved. Parts of this publication may be reproduced with attribution for non-commercial use and as citation. For all other purposes a prior written permission of thepublisher must be obtained.

Published by:Myths and Facts, Inc.PO Box 941, Forest Hills, NY 11375

Myths and Facts, Inc. is a tax-exempt organization under section 501(c)(3) of the InternalRevenue Code (“IRC”) and all contributions to it are deductible as charitable contributions.

www.MythsandFacts.orgeMail Address: [email protected]

Library of Congress Catalog Number: 2005921657

ISBN 0-9741804-1-6

Printed in the United States of America

Eli E. Hertz, Editor-in-Chief, Writer and PublisherDaniella Ashkenazy, Chief Researcher and Writer

Cover design by Nick MoscovitzMaps by Eli E. Hertz

Eli Hertz Reply 11-6-05c 11/6/05 5:41 PM Page 2

Table of Contents

Preface ........................................................................................................5

Introduction ...............................................................................................7

1 Testimony Testifying Against Israel..................................................13Who was allowed to present briefs and who was denied?

2 The “Mandate for Palestine” Document ..........................................25Is the Mandate for Palestine calling for a Jewish homeland in Palestine or is it the founding document for Palestinian self-determination?

3 Jerusalem and the Holy Places..........................................................41Jerusalem is cited 54 times in the Opinion. What is the City of Peace connection to the ‘Wall’?

4 Resolution 181 – the “Partition Plan”..............................................51Is the 1947 UN “Partition Plan” relevant?

5 Self-Defence .....................................................................................69The Right to Self-Defence and Lawful Use of Force

6 Terrorism..........................................................................................79Was UN Resolution 1377 that calls terrorism “… the most serious threats to international peace and security” ignored by the Court?

7 ICJ Attempts to Brand Israel the Aggressor......................................93Are Israel’s actions what the UN defines as aggression?

8 UN Security Council Resolutions 242 and 338................................97Is Israel an “Unlawful Occupier” based on UN Security Council Resolutions?

9 Territories – Legality of Jewish Settlements....................................101Was this issue part of the Court’s mandate?

10 The Supreme Court of the State of Israel .......................................121Was the use of rulings by the Supreme Court of the State of Israel manipulated by the ICJ?

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11 Arab Consistent Behavior and Precedent for Fencing.....................129Was fencing an acceptable temporary and non-political action against Arabterrorism during nearly three decades of British Mandate?

12 Self-Determination.........................................................................135Do Palestinian ‘rights to self-determination’ include ‘territorial rights’?

13 The International Court of Justice’s Mandate.................................141The Court’s opinions need to be applied “… in accordance with international law … accepted as law … principles of law … rules of law.” Was this followed?

14 Epilogue .........................................................................................149

15 Appendix A: The League of Nations “Mandate for Palestine”........153

Appendix B: UN Resolutions Regarding Terrorism:1269, 1368, 1373, and 1377 .....................................162

Appendic C: UN Resolutions 242, 338, and 1515 .........................170

Appendix D: UN Resolution 2625 .................................................173

Appendix E: UN Resolution 3314 – Defining Aggression.............176

Appendix F: Article 22 – Covenant of the League of Nations.........180

Appendix G: The PLO Charter ......................................................182

Appendix H: The FATEH Constitution .........................................186

Appendix I: ICJ Advisory Opinion, 9 July 2004.............................189

Index ......................................................................................................247

Maps:1. Mandate for Palestine...........................................................................242. UN Recommended “Partition Plan”.....................................................503. Border Changes As Arabs Initiate Wars of Aggression ........................100

R E P L Y – E L I E . H E R T Z

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P R E F A C E

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Preface

“After a sharp rise in Palestinian terror attacks in the spring of 2002”1 theGovernment of Israel called for the construction of a barrier in parts ofthe West Bank.

On October 21 2003, the UN General Assembly adopted Resolution ES-10/13, that among others: “Demands that Israel stop and reverse theconstruction of the wall in the Occupied Palestinian territory, includingin and around East Jerusalem.”

On November 24 2003, the UN General Assembly adopted ResolutionES-10/248, concluding that “Israel is not in compliance with theAssembly’s demand that it ‘stop and reverse the construction of the wallin the Occupied Palestinian Territory.’”2

On December 3 2003, the UN General Assembly adopted ResolutionES-10L.16, to [among others] “request the International Court ofJustice ... to urgently render an advisory opinion” on the legal conse-quences arising from the construction of the wall being built by Israel.

1 See “C. 1. Background to the construction of the Barrier” UN General AssemblyResolution ES-10/248. (10575)

2 Based on reports by John Dugard, UN Special Rapporteur on Human Rights in OccupiedPalestinian Territories.

This document uses extensive links via the Internet. If you experience a broken link, please note the 5 digit number(xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com.


On July 9 2004, the International Court of Justice delivered its AdvisoryOpinion on the “legal consequences of the construction of a wall in theoccupied Palestinian Territory.”

The International Court of Justice at the Hague (Netherlands) is theprincipal judicial organ of the United Nations and operates under aStatute which is an integral part of the Charter of the United Nations.

The Court has a twofold role: to settle legal disputes between states thathave accepted its jurisdiction, and to give advisory opinions on legalquestions referred to it by duly authorized international organs andagencies.

The Court is made-up of 15 judges elected to nine-year terms of officeby the United Nations General Assembly and the Security Council. TheBench rendering the Advisory Opinion in this case included: PresidentShi Jiuyong (China); Vice-President Raymond Ranjeva (Madagascar);Judges Abdul G. Koroma (Sierra Leone); Vladlen S. Vereshchetin(Russian Federation); Rosalyn Higgins (United Kingdom); GonzaloParra-Aranguren (Venezuela); Pieter H. Kooijmans (Netherlands);Francisco Rezek (Brazil); Awn Shawkat Al-Khasawneh (Jordan);Thomas Buergenthal (United States of America); Nabil Elaraby (Egypt);Hisashi Owada (Japan); Bruno Simma (Germany); Peter Tomka(Slovakia), and Gilbert Guillaume (France).

14 Judges voted in favor of the Advisory Opinion. Judge ThomasBuergenthal (United States of America) was the only dissenting vote.


6


Introduction

In July 2004, Israel-bashing at the United Nations took a new anddangerous turn, including for the first time the UN’s judicial machinery,the International Court of Justice. A coalition dominated by oppressiveregimes at the UN requested an advisory opinion from the InternationalCourt of Justice (ICJ) regarding the “legality” of the security barrierIsrael built to impede the movements of suicide bombers from the WestBank into Israel and the “ramifications” of the barrier – on Palestiniansonly.

Reply is not a formal legal brief. It is a critique that focuses on examinationof the ICJ’s 62-page Opinion – an inquiry that revealed just how far theBench was willing to go to serve political ends. The Court’s attempt todemonize the State of Israel and ignore Jewish rights by rewriting the last90-year history of the Arab-Israeli conflict, compelled me to expand thiscritique to include a broader undoctored version of the “Historicalbackground.”1

I N T R O D U C T I O N

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1 See Appendix I. ICJ Advisory Opinion, 9 July 2004, “Historical background” in thepreamble.


Consider just two of the “myths and facts” that surround the Court’srationale in its opinion on the ‘Wall,’ a barrier that impedes the move-ment of Palestinian terrorists into Israel, when it states that:

“… it is the Court’s view that the construction of the wall must be deemedto be directly of concern to the United Nations. The responsibility of theUnited Nations in this matter also has its origin in the Mandate [forPalestine] and the Partition Resolution [UN Resolution 181] concerningPalestine” [italics by author].

Myth – The ICJ claims that responsibility to bring about “the realiza-tion of the inalienable rights of the Palestinian people … has its originin the Mandate.”

Fact – Had the ICJ Bench examined the six pages of the “Mandate forPalestine” document, it would have noted that the Mandate for Palestinestates explicitly the goal of the Mandate: “the establishment of the Jewishnational home [in Palestine].”

Not once in the entire Mandate for Palestine document are Arabs as apeople mentioned. Jews were the only group granted political rights inthe area designated as Palestine, the National home of the Jewish people.There is a clear differentiation between political rights granted Jews, andcivil and religious rights granted members of non-Jewish groups residingin Palestine. The Mandate does not mention the word “Palestinians” orthe phrase “Palestinian Arabs” even once, as employed time and again inthe ICJ’s Opinion.

Myth – The ICJ claims that responsibility to bring about “the realiza-tion of the inalienable rights of the Palestinian people” also depends on“the Partition Resolution [UN Resolution 181] concerning Palestine.”

Fact – It appears that the ICJ was unaware that in November 1947, allArab states voted en bloc against UN Resolution 181 and kept theirpromise to defy its implementation by force. At the same time that the ICJ was re-writing history and building a case against the ‘Wall,’ the Palestinian Authority was rejecting this ‘pillar of Palestinian self-


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determination,’ as stated clearly in the PLO Charter2 vis-à-vis theMandate and the “Partition Plan”:

Article 19: “The partition of Palestine in 1947 and the establishment of thestate of Israel are entirely illegal, regardless of the passage of time …”

Article 20: “The Balfour Declaration, the Mandate for Palestine, and every-thing that has been based upon them, are deemed null and void.”

In another blunder, the Bench was willing to go to extraordinarylengths, undermining fundamental principles of the United Nations, indenying Israel’s rights to battle terrorism. Thus, one encounters theCourt’s fallacious interpretation of Article 51 of the UN Charter, declar-ing that Israel cannot claim self-defence against Palestinian terrorismbecause “the attacks against it are [not] imputable to a foreign State.”

Ironically, by the same logic, the British judge on the Bench, RosalynHiggins (who voted in favor of adopting the Opinion as written), shouldnow advise her Government to refrain from any act of self-defence, sincethe four terror attacks that rocked London’s public transportation systemon July 7 2005, that left 56 people dead and over 700 injured, were not“imputable to a foreign State,” and originated “within a territory overwhich … [Britain] … exercises control …”

I N T R O D U C T I O N

2 See Appendix G. The PLO Charter.


10



11

More than two decades ago, in his volume Israel and Palestine: Assault on the Law of Nations, juristProfessor Julius Stone quoted a warning issued by Professor Christoph H. Schreuer in 1977 regardingthe state of international law, written against the backdrop of a growing tendency within the GeneralAssembly to adopt double standards and the waning credibility of the General Assembly’s resolutions asa result. Schreuer’s words are particularly relevant today vis-à-vis the International Court of Justice. Formore about Professor Schreuer see: http://www.austria.org/oldsite/oct95/quit.htm. (11028)


“A recommendation’s significance willnot least depend on the moral authorityof the adopting organ.

“Only the maintenance of high andimpartial standards of decision-making in the international organ willendow its recommendations withpersuasive force for all sectors of theinternational community.

“The application of politicallymotivated double standards or the useof general resolutions to championpositions in political quarrels are liableto undermine the credibility of theinternational organ even in areas ofrelative agreement.”

R E P L Y



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1 Testimony Testifying Against Israel

In preparation for its hearing on the issue of Israel’s security fence, theICJ invited a series of anti-Israeli terrorist organizations that openlychampion and justify use of force and terrorism as a means of achievingtheir objectives as “likely to be able to furnish information on thequestion submitted to the Court.”1

It is revealing just whom the ICJ believed could contribute informationunder its limited, fact-finding apparatus of written affidavits and oralpresentations.

The ICJ heard testimony from the PLO, the Organization of IslamicConference (OIC), and the Arab League, while refusing to hear anyinput from Israeli victims of terrorism.

The ICJ approved requests from the League of Arab States (which isofficially in a state of war with Israel; see pages 18 and 20 for some ofthe League Resolutions), and the Organization of the Islamic Conference

T E S T I M O N Y T E S T I F Y I N G A G A I N S T I S R A E L

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1 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraph 6.


(OIC) to participate.2 The ICJ’s decision to honor the requests of thesetwo Arab ‘international bodies’ (i.e., accepting that they have somethingto contribute to the question at hand) is allowed under Article 66,Clause 3 of the ICJ’s Charter. Yet, the decision to invite them is in starkcontrast with the fact that the ICJ did not consider it fitting and properto invite the Organization of Casualties of Terror Acts in Israel to presentevidence – a step offered under Article 66, Clause 2 of its own Charter,which makes provisions for its own judicial procedures:

“To … notify any state entitled to appear before the Court or internationalorganization considered by the Court … as likely to be able to furnish infor-mation on the question” [italics by author].

A request on the part of Israeli terror victims’ families to participate inoral hearings was rejected by the ICJ on the eve of oral hearings on thegrounds that the families do not represent a country and thereforeshould not take part in the hearings.3 This was doubly ironic, for priorto this the ICJ decided in the Order of its docket, Resolution 2(December 19 2003) that it is fitting and proper for the ICJ to permit‘Palestine’ – which does not represent a country – to “submit [to theCourt] a written statement on the question … taking into account thefact that the General Assembly has granted Palestine a special status ofobserver and that the latter is co-sponsor of the draft resolution requestingthe advisory opinion…”4

Dr. Pieter H. F. Bekker, a member of the American Society ofInternational Law and former staff lawyer at the ICJ, dryly described the


14

2 “OIC at Hague: Link between suicide attacks, Israeli ‘terror’” at: http://www.jafi.org.il/education/actual/conflict/fence/6.html. (11352)

3 “ICJ rejects terror victim’s families participation,” The Jerusalem Post, February 21 2004 at:http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/Printer&cid=1077351468319. (11353)

4 Order December 19 2003, at: http://www.mefacts.com/cache/pdf/wallruling_/11354.pdf. (11354)



ICJ’s decision to invite a non-state “a novelty.”5 In a move reflecting adubious regard for justice, the Court utilizes the PLO, a terrorconglomerate, that in 1972 murdered 11 Israelis at the MunichOlympics6 and whose UN-sponsored website to this very day featuresthe “Palestinian National Charter” calling for the destruction of Israel byarmed struggle as an evidentiary source.7

Taking the ‘fence issue’ to the International Court of Justice was acontroversial step from the start. The voting in the General Assembly onthe resolution to request an advisory opinion passed the GeneralAssembly, but not with the typical near-unanimous anti-Israel vote. Theresolution failed to receive an absolute majority among 191 memberstates. There were 90 in favor, 8 against and 74 abstentions, includingmost of Europe.8 19 delegations didn’t even show up to vote.9

According to Article 66 of the “International Court of Justice’s Charter,”“… any state[s] [are] entitled to appear before the Court.” Nevertheless,one is struck by the fact that 23 out of the 26 states who chose to presentaffidavits are categorized as “Not Free” by the human rights monitoringorganization, Freedom House.


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5 Pieter H. F. Bekker, “The UN General Assembly Requests a World Court AdvisoryOpinion on Israel’s Separation Barrier,” American Society of International Law, December2003, at: http://www.asil.org/insights/insigh121.htm. (11355)

6 This and a host of other atrocities, including a 1970 attack on an Israeli elementary schoolbus that killed 12 children and adults. For details of the Munich massacre, see:http://www.palestinefacts.org/pf_1967to1991_munich.php. (11356)

7 Appendix G “Palestine National Charter 1968.” Also see: http://www.pna.gov.ps/Government/gov/plo_Charter.asp. (10366) There is no ‘revised text’ of the Charter, aspromised in 1993.

8 Saul Singer, “Delegitimizing Israel,” National Review at: http://nationalreview.com/script/printpage.asp?ref=/comment/singer200401230908.asp. (11357)

9 Pieter H. F. Bekker, “The UN General Assembly Requests a World Court AdvisoryOpinion on Israel’s Separation Barrier,” American Society of International Law, December2003, at: http://www.asil.org/insights/insigh121.htm. (11355)



Some of these states are rated as the worst offenders of human rights forwhich:

“Political rights are absent or virtually nonexistent as a result of the extremelyoppressive nature of the regime or severe oppression in combination withcivil war. States and territories in this group may also be marked by extremeviolence or warlord rule that dominates political power in the absence of anauthoritative, functioning central government.”10

The 26 states include: Algeria, Bahrain, Bangladesh, Brunei Darussalam,Comoros, Cuba, Djibouti, Egypt, Indonesia, Jordan, Kuwait, Lebanon,Malaysia, Mauritania, Morocco, Namibia, Oman, Qatar, Saudi Arabia,Senegal, Somalia, South Africa, Sudan, Tunisia, United Arab Emirates,Yemen and ‘Palestine’ – all of whom submitted scathing ‘finger pointing’affidavits regarding Israel’s conduct. Nearly one-half of the briefs werefrom entities that do not even recognize Israel’s right to exist or have nodiplomatic relations with Israel.11

What other entities were allowed to present affidavits? Clause 2 ofArticle 66 of the ICJ’s Charter cites that:

“The Registrar shall also, by means of a special and direct communication,notify any state entitled to appear before the Court or international organi-zation considered by the Court … as likely to be able to furnish informationon the question.”

It is most incongruous that the ICJ, ‘sticking strictly to its mandate’repeats time and again the “inadmissibility of the acquisition of territoryby war” (out of context) but sees nothing wrong with accepting testimonyfrom the PLO, Fateh, the Arab League and the Organization of IslamicStates, entities that refuse to recognize Israel, oppose compromise, justify


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10 Freedom House, an NGO founded nearly sixty years ago by Eleanor Roosevelt, monitorsthe degree of freedom accorded citizens of various countries according to various parame-ters, and classifies countries accordingly. For the full report see: http://www.freedomhouse.org/research/survey2004.htm. (10783)

11 Countries that do not recognize Israel: Cuba, Indonesia, Kuwait, Lebanon, Republic ofKorea. Malaysia, Pakistan, Saudi Arabia, Sudan, Syria and Yemen.



support for terrorism, champion the use of violence and defy in wordsand deeds, ‘the inadmissability of use of violence.’

Fateh – the main faction of the PLO to which Arafat belonged and wasits founding member – displays its constitution on its website.12 It callsunder Article 12 for the:

“Complete liberation of Palestine, and eradication of Zionist economic,political, military and cultural existence.”

The next Fateh Article calls for:

“Establishing an independent democratic state with complete sovereignty onall Palestinian lands, and Jerusalem as its capital city, and protecting thecitizens’ legal and equal rights without any racial or religious discrimination.”

As for how it will achieve its goals, Fateh’s constitution, Article 19,minces no words:

“Armed struggle is a strategy and not a tactic, and the Palestinian ArabPeople’s armed revolution is a decisive factor in the liberation fight and inuprooting the Zionist existence, and this struggle will not cease unless theZionist state is demolished and Palestine is completely liberated.”

In the PLO’s testimony to the ICJ, which appears in paragraph 115 ofthe opinion, the organization claims that the Barrier:

“… severs the territorial sphere over which the Palestinian people are entitledto exercise their right of self-determination and constitutes a violation of thelegal principle prohibiting the acquisition of territory by the use of force.”

The ICJ addresses this charge with all seriousness.

It is also illuminating to examine the record of the League of Arab States’resolutions since the founding of the Arab League in 1945, which ishardly a model for peaceful settlement of disputes in the spirit of the


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12 See Appendix H. The FATEH Constitution.


United Nations. For instance, prior to the establishment of the Jewishstate, the League took the following steps:13

• In December 1945, the Arab League launched a boycott of ‘Zionist

goods’ that continues to this day.14

• In June 1946, it established the Higher Arab Committee to

“coordinate efforts with regard to Palestine,” a radical body that led

and coordinated attempts to wipe Israel off the map.15

• In December 1946, it rejected the first proposed Palestine partition

plans, reaffirming “that Palestine is a part of the Arab motherland.”16

• In October 1947, prior to the vote on Resolution 181 – the

“Partition Plan” – it reasserted the necessity for military preparations

along Arab borders to “defending Palestine.”17

• In February 1948, it approved “a plan for political, military, andeconomic measures to be taken in response to the Palestine crisis.”18


18

13 Listing of the Arab League sessions covering the League sessions between June 4 1945 toNovember 17 1957 can be found at: http://faculty.winthrop.edu/haynese/mlas/ALSessions.html. (11358)

14 Session: 2, Cairo, Egypt. Resolution 16 (December 16 1945), “The Boycott of ZionistGoods and Products” (Khalil, 2:161) – plans made to establish a committee to enforce theboycott. (11358)

15 Session 4, Bludan, Syria, Resolution 82 (June 12 1946), “The Higher Arab ExecutiveCommittee” (Khalil, 2:162) – Establish the body to coordinate efforts with regard toPalestine. (11358)

16 Ibid.17 Session: 7, Cairo, Egypt, Resolution 181 (October 9 1947), “Defending Palestine” (Khalil,

2:164-65) – Reassertion of the necessity for military preparations along Arab borders.(11358)

18 Session: 8, Cairo, Egypt, February 1948, Council approved plan for political, military, andeconomic measures to be taken in response to the Palestine crisis, including withholdingpetroleum concessions and other possible sanctions against countries aiding the Zionists.(11358)



• In October 1948, it rejected the UN “Partition Plan” for Palestineadopted by the General Assembly in Resolution 181.19

On May 15 1948, as the regular forces of Egypt, Trans-Jordan, Syria,Lebanon, Iraq, and contingents from Saudi Arabia and Yemen invadedIsrael to ‘restore law and order,’ the Arab League issued a lengthy docu-ment entitled “Declaration on the Invasion of Palestine.” In it, the Arabstates drew attention to:

“… the injustice implied in this solution [affecting] the right of the peopleof Palestine to immediate independence … declared the Arabs’ rejection of[Resolution 181]” which the League said “would not be possible to carry itout by peaceful means, and that its forcible imposition would constitute athreat to peace and security in this area” and claimed that the “security andorder in Palestine have become disrupted” due to the “aggressive intentionsand the imperialistic designs of the Zionists” and “the Governments of theArab States, as members of the Arab League, a regional organization … viewthe events taking place in Palestine as a threat to peace and security in thearea as a whole. … Therefore, as security in Palestine is a sacred trust in thehands of the Arab States, and in order to put an end to this state of affairs …the Governments of the Arab States have found themselves compelled tointervene in Palestine.”20

The Secretary-General of the Arab League, Azzam Pasha, was lessdiplomatic and far more candid. With no patience for polite or veiledlanguage, on the same day Israel declared its independence on May 14 1948, at a Cairo press conference reported the next day in The New York Times, Pasha repeated the Arabs’ “intervention to restore law and order” revealing:

“This will be a war of extermination and a momentous massacre which willbe spoken of like the Mongolian massacres and the Crusades.”


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19 Session: 9, Cairo, Egypt, October 1948, rejection of partition plan for Palestine. (11358)20 For the full text of the Arab League declaration on the invasion of Palestine – 15 May 1948,

see Israel Ministry of Foreign Affairs at: http://www.mefacts.com/cache/html/wall-ruling_/11359.htm. (11359)



The League of Arab States continued to oppose peace after Israel’s 1948War of Independence:

• In July 15 1948, the UN Security Council adopted Resolution54 calling on Arab aggression to stop:

“Taking into consideration that the Provisional Government of Israelhas indicated its acceptance in principle of a prolongation of the trucein Palestine; that the States members of the Arab League have rejectedsuccessive appeals of the United Nations Mediator, and of the SecurityCouncil in its resolution 53 (1948) of 7 July 1948, for the prolongationof the truce in Palestine; and that there has consequently developed arenewal of hostilities in Palestine.”21

• In October 1949, the Arab League declared that negotiationwith Israel by any Arab state would be in violation of Article 18of the Arab League.22

• In April 1950, it called for severance of relations with any Arabstate which engaged in relations or contacts with Israel andprohibited Member states from negotiating unilateral peacewith Israel.23

• In March 1979, it suspended Egypt’s membership in theLeague (retroactively) from the date of its signing a peace treatywith Israel.24


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21 UN Security Council S/RES/54 (1948), July 15 1948, at: http://domino.un.org/UNISPAL.NSF/0/2e2bcb7cbafd9b70852560c2005b5eec?OpenDocument. (10894)

22 Session: 11, Resolution 250, October 1949, Cairo, Egypt, Declared that any member Statenegotiating with Israel would be in violation of Article 18 of the Arab League Pact. (11358)

23 Session: 12, Resolution 312 (April 13 1950) Called for severance of relations with any ArabState, which engaged in relations or contacts with Israel. (11358)

24 Session: 70, March 1979, Bagdad, Iraq, Resolution to recommend severance of politicaland diplomatic relations with Egypt. (11358)



More recently, in the Beirut Declaration of March 27-28, 2002, adoptedat the height of Palestinian suicide attacks in Israel, the Arab Leaguedeclared:

“We, the kings, presidents, and emirs of the Arab states meeting in theCouncil of the Arab League Summit in Beirut, capital of Lebanon ... haveconducted a thorough assessment of the developments and challenges ...relating to the Arab region and, more specifically, to the occupied Palestinianterritory. With great pride, we followed the Palestinian people’s intifada andvaliant resistance. … We address a greeting of pride and honour to thePalestinian people’s steadfastness and valiant intifada against the Israelioccupation and its destructive war machine. We greet with honour and pridethe valiant martyrs of the intifada.”25

The Arab League, which has systematically opposed and blocked peaceefforts for 60 years, is in a declared state-of-war with Israel, and morerecently, proudly and publicly supports the deeds of suicide bombers, isnow deemed by the International Court of Justice to have somethingsignificant to contribute regarding the propriety of Israel’s security barrier.

Another ‘welcome participant’ in the ICJ’s proceedings was theOrganization of the Islamic Conference. The OIC recently held a con-ference in Malaysia prior to the issuance of the ICJ opinion, dedicatedto refuting the connection between the Muslim world and terrorism. Inan editorial in The Washington Post (“Death Wish,” April 4 2002)26 thestunned editors of the paper noted the nature of this organization andits agenda:

“57 assembled states adopted a resolution that specifically rejected the ideathat Palestinian ‘resistance’ to Israel has anything to do with terrorism … In


21

25 For excerpts from the text, posted in English translation on the Arab portal al-bab(‘Gateway’), see: http://www.al-bab.com/arab/docs/league/communique02.htm. (11360)

26 Defending Palestinian suicide bombers. Kuala Lumpur, Malaysia, April 3 2002. See: http://www.mefacts.com/cache/html/islam/11369.htm. (11369). See also “MalaysiaPM: Arm Islam, Fight Jews” at: http://www.mefacts.com/cache/html/antisemitism/10514.htm (10514) and http://www.mefacts.com/cache/html/icj/11482.htm. (11482)



effect, the Islamic conference sanctioned not only terrorism but also suicideas legitimate political instruments … It is hard to imagine any other groupingof the world’s nations that could reach such a self-destructive and morallyrepugnant conclusion … Muslim spokesmen protest that terrorism is noteasily defined. … And yet it should not be hard to agree that a person whodetonates himself in a pizza parlor or a discotheque filled with children,spraying scrap metal and nails in an effort to kill and maim as many of themas possible, has done something evil that can only discredit and damagewhatever cause he hopes to advance.”

It continued and warned prophetically:

“That Muslim governments cannot agree on this is shameful evidence oftheir own moral and political corruption. … The Palestinian national causewill never recover – nor should it – until its leadership is willing to breakdefinitively with the bombers. And Muslim states that support suchsickening carnage will risk not just stigma but also their own eventual self-destruction.”

Nevertheless, the Bench of the International Court of Justice isconvinced that such an organization can contribute to its deliberations.

The ICJ also overlooks the existence of Palestinian self-rule27 and the role of the PA and Arafat in encouraging, financing, directing and evenengaging directly in terrorism.28 It also ignored the solidarity Palestiniansociety has exhibited in embracing terrorism.

At the time of the hearings, reputable Palestinian pollster Dr. KhalilShikaki of Ramallah found broad public support for terrorism and thebelief that ‘terrorism pays off.’ In late September 2004, following the ICJopinion that judges terrorism immaterial, Dr. Shikaki’s annual pollfound 77 percent of all Palestinians support the double suicide bombing


22

27 See Main Points of Gaza-Jericho Agreement (Oslo) at: http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/Main%20Points%20of%20Gaza-Jericho%20Agremeent. (11371)

28 See IDF report: “Arafat’s and the PA’s Involvement in Terrorism” at: http://www.intelli-gence.org.il/eng/bu/financing/pdfs/03.pdf. (11372)



of two public buses in Beersheba (compared to 75 percent for a similaract at the Maxim restaurant in Haifa in October 2003, before the issuingof the ICJ’s opinion); 75 percent support the shelling of Israeli civiliansettlements from Gaza; and 64 percent (up from 59 percent in October2003) “believe armed confrontations have helped Palestinians achievetheir national rights in ways that negotiations could not.”29


23

29 See polls by pollster Dr. Khalil Shukaki, at: www.pcpsr.org.


24


1920 – Original territory assigned to the Jewish National Home

1922 – Final territory assigned to the Jewish National Home


2 The “Mandate for Palestine” Document

The ICJ, in noting it would briefly analyze “the status of the territoryconcerned,” and the “Historical background ,” fails to cite the true andrelevant content of the historical document, the “Mandate for Palestine.”1

The “Mandate for Palestine” [E.H., the Court refers to as “Mandate”]laid down the Jewish right to settle anywhere in western Palestine, thearea between the Jordan River and the Mediterranean Sea, an entitlementunaltered in international law and valid to this day.

The legally binding Mandate for Palestine document, was conferred onApril 24 1920, at the San Remo Conference and its terms outlined inthe Treaty of Sevres on August 10 1920. The Mandate’s terms werefinalized on July 24 1922, and became operational in 1923.

In paragraphs 68 and 69 of the opinion, ICJ states it will first “determinewhether or not the construction of that wall breaches international law.”The opinion quotes hundreds of documents as relevant to the case athand, but only a few misleading paragraphs are devoted to the“Mandate.” Moreover, when it comes to discussing the significance ofthe ‘founding document’ regarding the status of the territory in question– situated between the Jordan River and the Mediterranean Sea, includingthe State of Israel, the West Bank and Gaza – the ICJ devotes a mere 237murky words to nearly 30 years of history when Great Britain ruled theland it called Palestine.

T H E “ M A N D A T E F O R P A L E S T I N E ” D O C U M E N T

25

1 See Appendix A. “Mandate for Palestine.”


All the more remarkable, the ICJ thinks that the “Mandate for Palestine”was the founding document for Arab Palestinian self-determination!

The ICJ’s faulty reading of the “Mandate.”

“Palestine was part of the Ottoman Empire. At the end of the First WorldWar, a class ‘A’ Mandate for Palestine was entrusted to Great Britain by theLeague of Nations, pursuant to paragraph 4 of Article 22 of the Covenant,which provided that: ‘Certain communities, formerly belonging to theTurkish Empire, have reached a stage of development where their existenceas independent nations can be provisionally recognized, subject to therendering of administrative advice and assistance by a Mandatory until suchtime as they are able to stand alone.’”2

The judges choose to speak of “Palestine” in lieu of the actual wordingof the historic document that established the Mandate for Palestine –“territory of Palestine.”3 The latter would demonstrate that “Palestine” isa geographic designation, and not a polity. In fact, Palestine has neverbeen an independent state belonging to any people, nor did a Palestinianpeople, distinct from other Arabs, appear during 1,300 years of Muslimhegemony in Palestine under Arab and Ottoman rule. Local Arabsduring that rule were actually considered part of and subject to theauthority of Greater Syria (Suriyya al-Kubra).

The ICJ, throughout its lengthy opinion, chooses to speak incessantly of“Palestinians” and “Palestine” as an Arab entity, failing to define thesetwo terms and making no clarification as to the nature of the “Mandatefor Palestine.”


26

2 See Appendix I. ICJ Advisory Opinion, 9 July 2004.3 See Appendix A. “Mandate for Palestine,” first sentence: “Whereas the Principal Allied

Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of theCovenant of the League of Nations, to entrust to a Mandatory selected by the said Powersthe administration of the territory of Palestine, which formerly belonged to the TurkishEmpire, within such boundaries as may be fixed by them.” [italics by author]



27

4 For more on this subject see, Popular Searches: Territories and Palestinians at http://www.MEfacts.com.

Palestine is a geographical area, not a nationality.

Below is a copy of the document as filed at the British National Archivedescribing the delineation of the geographical area called Palestine:

PALESTINE

INTRODUCTORY.POSITION, ETC.

Palestine lies on the western edge of the continent of Asia between Latitude 30° N.and 33° N., Longitude 34° 30’ E. and 35° 30’ E.

On the North it is bounded by the French Mandated Territories of Syria andLebanon, on the East by Syria and Trans-Jordan, on the South-west by the Egyptianprovince of Sinai, on the South-east by the Gulf of Aqaba and on the West by theMediterranean. The frontier with Syria was laid down by the Anglo-FrenchConvention of the 23rd December, 1920, and its delimitation was ratified in 1923.Briefly stated, the boundaries are as follows:

North. – From Ras en Naqura on the Mediterranean eastwards to a point west ofQadas, thence in a northerly direction to Metulla, thence east to a point west ofBanias.

East. – From Banias in a southerly direction east of Lake Hula to Jisr Banat Ya’pub,thence along a line east of the Jordan and the Lake of Tiberias and on to El Hammestation on the Samakh-Deraa railway line, thence along the centre of the riverYarmuq to its confluence with the Jordan, thence along the centres of the Jordan, theDead Sea and the Wadi Araba to a point on the Gulf of Aqaba two miles west of thetown of Aqaba, thence along the shore of the Gulf of Aqaba to Ras Jaba.

South. – From Ras Jaba in a generally north-westerly direction to the junction of theNeki-Aqaba and Gaza Aqaba Roads, thence to a point west-north-west of AinMaghara and thence to a point on the Mediterranean coast north-west of Rafa.

West. – The Mediterranean Sea.

Like a mantra, Arabs, the UN, its organs and now the InternationalCourt of Justice have claimed repeatedly that the Palestinians are a nativepeople – so much so that almost everyone takes it for granted. Theproblem is that a stateless Palestinian people is a fabrication. The word‘Palestine’ is not even Arabic.4

In a report by His Majesty’s Government in the United Kingdom ofGreat Britain and Northern Ireland to the Council of the League of


Nations on the administration of Palestine and Trans-Jordan for the year1938, the British made it clear: Palestine is not a State but is the name ofa geographical area.5

The ICJ Bench creates the impression that the League of Nations wasspeaking of a nascent state or national grouping – the Palestinians whowere one of the “communities” mentioned in Article 22 of the League ofNations. Nothing could be farther from the truth. The Mandate forPalestine was a Mandate for Jewish self-determination.

It appears that the Court ignored the content of this most significantlegally-binding document regarding the status of the Territories.

Paragraph 1 of Article 22 of the Covenant of the League of Nationsreads:

“To those colonies and territories which as a consequence of the late war haveceased to be under the sovereignty of the States which formerly governedthem and which are inhabited by peoples not yet able to stand by themselvesunder the strenuous conditions of the modern world, there should be appliedthe principle that the well-being and development of such peoples form asacred trust of civilization and that securities for the performance of this trustshould be embodied in this Covenant.”6


28

5 Palestine is a word coined by the Romans around 135 C.E. from the name of a seagoingAegean people who settled on the coast of Canaan in antiquity – the Philistines. The namewas chosen to replace Judea, as a sign that Jewish sovereignty had been eradicated after theJewish Revolt against Rome. In the course of time, the name Philistia in Latin was furtherbastardized into Palistina or Palestine. In modern times the name ‘Palestine’ or ‘Palestinian’was applied as an adjective to all inhabitants of the geographical area between theMediterranean Sea and the Jordan River – Palestinian Jews and Palestinian Arabs alike. Infact, up until the 1960s, most Arabs in Palestine preferred to identify themselves merely aspart of the great Arab nation or as part of Arab Syria.Until recently, no Arab nation or group recognized or claimed the existence of anindependent Palestinian nationality or ethnicity. Arabs who happened to live in Palestinedenied that they had a unique Palestinian identity. The First Congress of Muslim-ChristianAssociations (Jerusalem, February 1919) met to select Palestinian Arab representatives forthe Paris Peace Conference. They adopted the following resolution: “We consider Palestineas part of Arab Syria, as it has never been separated from it at any time. We are connectedwith it by national, religious, linguistic, natural, economic and geographical bonds.” SeeYehoshua Porath, “The Palestinian Arab National Movement: From Riots to Rebellion,”Frank Cass and Co., Ltd, London, 1977, vol. 2, pp. 81-82.

6 See Appendix F. Article 22 of The Covenant of The League of Nations, A/297, April 301947.


The Palestinian [British] Royal Commission Report of July 1937addresses Arab claims that the creation of the Jewish National Home asdirected by the Mandate for Palestine violated Article 22 of theCovenant of the League of Nations, arguing that they are the communitiesmentioned in paragraph 4:

“As to the claim, argued before us by Arab witnesses, that the PalestineMandate violates Article 22 of the Covenant because it is not in accordancewith paragraph 4 thereof, we would point out (a) that the provisionalrecognition of ‘certain communities formerly belonging to the TurkishEmpire’ as independent nations is permissive; the words are ‘can beprovisionally recognised’, not ‘will ’ or ‘shall ’: (b) that the penultimate para-graph of Article 22 prescribes that the degree of authority to be exercised by theMandatory shall be defined, at need, by the Council of the League: (c) that theacceptance by the Allied Powers and the United States of the policy of theBalfour Declaration made it clear from the beginning that Palestine would haveto be treated differently from Syria and Iraq, and that this difference oftreatment was confirmed by the Supreme Council in the Treaty of Sevres andby the Council of the League in sanctioning the Mandate.

“This particular question is of less practical importance than it might seemto be. For Article 2 of the Mandate requires ‘the development of self-governinginstitutions’; and, read in the light of the general intention of the MandateSystem (of which something will be said presently), this requirement implies,in our judgment, the ultimate establishment of independence.

“(3) The field [Territory] in which the Jewish National Home was to beestablished was understood, at the time of the Balfour Declaration, to be thewhole of historic Palestine, and the Zionists were seriously disappointedwhen Trans-Jordan was cut away from that field [Territory] under Article25.” [E.H., That excluded 77 percent of historic Palestine – the territory eastof the Jordan River, what became later Trans-Jordan.]7

The “inhabitants” of the territory for whom the Mandate for Palestine wascreated, who according to the Mandate were “not yet able” to governthemselves and for whom self-determination was a “sacred trust,” were notPalestinians, or even Arabs. The Mandate for Palestine was created by thepredecessor of the United Nations, the League of Nations, for the JewishPeople.8


29

7 Palestine Royal Report, July 1937, Chapter II, p. 38.8 See: Appendix A. “Mandate for Palestine.”


The second paragraph of the preamble of the Mandate for Palestinetherefore reads:

“Whereas the Principal Allied Powers have also agreed that the Mandatoryshould be responsible for putting into effect the declaration originally madeon November 2nd, 1917, by the Government of His Britannic Majesty, andadopted by the said Powers, in favor of the establishment in Palestine of anational home for the Jewish people, it being clearly understood that nothingshould be done which might prejudice the civil and religious rights ofexisting non-Jewish communities in Palestine … Recognition has thereby beengiven to the historical connection of the Jewish people with Palestine and to thegrounds for reconstituting their national home in that country ...” 9 [italics byauthor].

The ICJ erred in identifying the “Mandate for Palestine”as a Class “A” Mandate.

The Inernational Court of Justice also assumed that the “Mandate forPalestine” was a Class “A” mandate,10 a common, but inaccurateassertion that can be found in many dictionaries and encyclopedias, andis frequently used by the pro-Palestinian media. In paragraph 70 of theopinion, the Court erroneously states that:

“Palestine was part of the Ottoman Empire. At the end of the First WorldWar, a class [type] ‘A’ Mandate for Palestine was entrusted to Great Britain bythe League of Nations, pursuant to paragraph 4 of Article 22 of the Covenant …”11 [italics by author].

Indeed, Class “A” status was granted to a number of Arab peoples whowere ready for independence in the former Ottoman Empire, and onlyto Arab entities.12 Palestinian Arabs were not one of these ‘Arab peoples.’


30

9 Ibid.10 The British Government used the term ‘Special Regime.’11 See Appendix I. ICJ Advisory Opinion, 9 July 2004.12 Class “A” mandates assigned to Britain was Iraq, and assigned to France was Syria and

Lebanon. Examples of other type of Mandates were the Class “B” mandate assigned toBelgium administrating Ruanda-Urundi, and the Class “C” mandate assigned to SouthAfrica administering South West Africa.


The Palestine Royal Report clarifies this point:

“(2) The Mandate [for Palestine] is of a different type from the Mandate forSyria and the Lebanon and the draft Mandate for Iraq. These latter, whichwere called for convenience “A” Mandates, accorded with the fourth para-graph of Article 22. Thus the Syrian Mandate provided that the governmentshould be based on an organic law which should take into account the rights,interests and wishes of all the inhabitants, and that measures should beenacted ‘to facilitate the progressive development of Syria and the Lebanonas independent States’. The corresponding sentences of the draft Mandate forIraq were the same. In compliance with them National Legislatures wereestablished in due course on an elective basis. Article 1 of the PalestineMandate, on the other hand, vests ‘full powers of legislation and of adminis-tration’, within the limits of the Mandate, in the Mandatory”13, 14 [italics byauthor].

The Palestine Royal Report highlights additional differences:

“Unquestionably, however, the primary purpose of the Mandate, as expressedin its preamble and its articles, is to promote the establishment of the JewishNational Home.

“(5) Articles 4, 6 and 11 provide for the recognition of a Jewish Agency ‘as apublic body for the purpose of advising and co-operating with theAdministration’ on matters affecting Jewish interests. No such body isenvisaged for dealing with Arab interests.15

“48. But Palestine was different from the other ex-Turkish provinces. It was,indeed, unique both as the Holy Land of three world-religions and as the oldhistoric homeland of the Jews. The Arabs had lived in it for centuries, butthey had long ceased to rule it, and in view of its peculiar character theycould not now claim to possess it in the same way as they could claimpossession of Syria or Iraq”16 [italics by author].


31

13 The “Palestine Royal Report”, July 1937, Chapter II, p.38.14 Claims that Palestinian self-determination was granted under Chapter 22 of the UN

Charter and the ‘pre-existence’ of an Arab governmental structure (of a host of fallacies) canbe found in Issa Nakhlah, “Encyclopedia of the Palestinian Problem” at http://www.pales-tine-encyclopedia.com/EPP/Chapter01.htm. (11452)

15 Palestine Royal Report, July 1937, Chapter II, p. 39.16 Ibid. p. 40.



Identifying the “Mandate for Palestine” as Class “A” wasvital to the ICJ.

There is much to be gained by attributing Class “A” status to theMandate for Palestine. If ‘the inhabitants of Palestine’ were ready forindependence under a Class “A” mandate, then the Palestinian Arabsthat made up the majority of the inhabitants of Palestine in 1922(589,177 Arabs vs. 83,790 Jews)17 could then logically claim that theywere the intended beneficiaries of the Mandate for Palestine – providedone never reads the actual wording of the document:

1. The “Mandate for Palestine”18 never mentions Class “A” status at anytime for Palestinian Arabs.

2. Article 2 clearly speaks of the Mandatory as being:

“responsible for placing the country under such political, administrative andeconomic conditions as will secure the establishment of the Jewish nationalhome” [italics by author].

The Mandate calls for steps to encourage Jewish immigration andsettlement throughout Palestine except east of the Jordan River.Historically, therefore, Palestine was an ‘anomaly’ within the Mandatesystem, ‘in a class of its own’ – initially referred to by the British as a“special regime.”19

Political rights were granted to Jews only.

Had the ICJ Bench examined all six pages of the Mandate for Palestinedocument, it would have also noted that several times the Mandate forPalestine clearly differentiates between political rights – referring toJewish self-determination as an emerging polity – and civil and religiousrights, referring to guarantees of equal personal freedoms to non-Jewishresidents as individuals and within select communities. Not once are


32

17 Citing by the UN. 1922 Census. See at: http://www.unu.edu/unupress/unupbooks/80859e/80859E05.htm. (11373)

18 See: Appendix A. “Mandate for Palestine.” 19 Palestine Royal Report, July 1937, Chapter II, p. 28, paragraph 29.



Arabs as a people mentioned in the Mandate for Palestine. At no pointin the entire document is there any granting of political rights to non-Jewish entities (i.e., Arabs) because political rights to self-determinationas a polity for Arabs were guaranteed in three other parallel Class “A”mandates – in Lebanon, Syria and Iraq. Again, the Bench failed to do itshistory homework. For instance, Article 2 of the Mandate for Palestinestates explicitly that the Mandatory should:

“… be responsible for placing the country under such political, administrativeand economic conditions as will secure the establishment of the Jewishnational home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rightsof all the inhabitants of Palestine, irrespective of race and religion” [italics by author].

Eleven times in the Mandate for Palestine the League of Nations speaksspecifically of Jews and the Jewish people, calling upon Great Britain tocreate a nationality law “to facilitate the acquisition of Palestiniancitizenship by Jews who take up their permanent residence in Palestine.”

There is not one mention of the word “Palestinians” or the phrase“Palestinian Arabs,” as it is exploited today. The “non-Jewishcommunities” the Mandate document speaks of were extensions (or intoday’s parlance, ‘diaspora communities’) of another Arab people forwhom a separate mandate had been drawn up at the same time: theSyrians that the International Court of Justice ignored in its so-called“Historical background” of the Mandate system.20

Consequently, it is not surprising that a local Arab leader, Auni BeyAbdul-Hadi, stated in his testimony in 1937 before the PeelCommission:

“There is no such country [as Palestine]! Palestine is a term the Zionistsinvented! There is no Palestine in the Bible. Our country was for centuries,part of Syria.”21


33

20 The League of Nations puts Syria under French mandate. Syria gained full independenceon 17 April 1946.

21 For this and a host of other quotes from Arab spokespersons on the Syrian identity of localArabs, see http://www.yahoodi.com/peace/palestinians.html. (11538)



The term ‘Palestinian’ in its present connotation had only been inventedin the 1960s to paint Jews – who had adopted the term ‘Israelis’ after theestablishment of the State of Israel – as invaders now residing on Arabturf. The ICJ was unaware that written into the terms of the Mandate,Palestinian Jews had been directed to establish a “Jewish Agency forPalestine” (today, the Jewish Agency), to further Jewish settlements, orthat since 1902, there had been an “Anglo-Palestine Bank,” establishedby the Zionist Movement (today Bank Leumi). Nor did they know thatJews had established a “Palestine Philharmonic Orchestra” in 1936(today, the Israeli Philharmonic), and an English-language newspapercalled the “The Palestine Post’”in 1932 (today, The Jerusalem Post) – alongwith numerous other Jewish Palestinian institutions.

Consequently, the ICJ incorrectly cites the unfulfilled Mandate forPalestine and the Partition Resolution concerning Palestine asjustification for the Bench’s intervention in the case. The ICJ argues thatas the judicial arm of the United Nations, the International Court ofJustice has jurisdiction in this case because of its responsibility as a UNinstitution for bringing Palestinian self-determination to fruition! Inparagraph 49 of the opinion, the Bench declares:

“… the Court does not consider that the subject-matter of the GeneralAssembly’s request can be regarded as only a bilateral matter between Israeland Palestine …[therefore] construction of the wall must be deemed to bedirectly of concern to the United Nations. The responsibility of the UnitedNations in this matter also has its origin in the Mandate and the PartitionResolution concerning Palestine.22 This responsibility has been described bythe General Assembly as ‘a permanent responsibility towards the question ofPalestine until the question is resolved in all its aspects in a satisfactorymanner in accordance with international legitimacy’ (General Assemblyresolution 57/107 of 3 December 2002.) …” the objective being “the realiza-tion of the inalienable rights of the Palestinian people” [italics by author].


34

22 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraphs 70-71.


To the average reader without historical knowledge of this conflict, theterm “Mandate for Palestine” sounds like an Arab trusteeship, but thisinterpretation changes neither history nor legal facts about Israel.

Had the ICJ examined the minutes of the report of the 1947 “UnitedNations Special Committee on Palestine,”23 among the myriad ofdocuments it did examine, the learned judges would have known thatthe Arabs categorically rejected the Mandate for Palestine. In the July 22,1947 testimony of the President of the Council of Lebanon, HamidFrangie, the Lebanese Minister of Foreign Affairs, speaking on behalf ofall the Arab countries, declared unequivocally:

“... there is only one solution for the Palestinian problem, namely cessationof the Mandate [for the Jews]” and both the Balfour Declaration and theMandate are “null and valueless.” All of Palestine, he claimed, “is in fact anintegral part of this Arab world, which is organized into sovereign States(with no mention of an Arab Palestinian State) bound together by thepolitical and economic pact of 22 March 1945”24 [E.H., the Arab League].

Frangie warned of more bloodshed:

“The Governments of the Arab States will not under any circumstances agreeto permit the establishment of Zionism as an autonomous State on Arabterritory” and that Arab countries “wish to state that they feel certain that thepartition of Palestine and the creation of a Jewish State would result only inbloodshed and unrest throughout the entire Middle East”25 [italics by author].

This is not the only document that would have instructed the judgesthat the Mandate for Palestine was not for Arab Palestinians. Article 2026

of the PLO Charter, adopted by the Palestine National Council in July


35

23 See doc. at: http://www.mefacts.com/cache/html/un-documents/11188.htm. (11188)24 Ibid.25 Ibid.26 See Appendix G. Article 20 of the PLO Charter. (10366)



1968 and never legally revised,27 and proudly posted on the Palestiniandelegation’s UN website, states:

“The Balfour Declaration, the Mandate for Palestine, and everything that hasbeen based upon them, are deemed null and void.”28

The PLO Charter adds that Jews do not meet the criteria of a nationalityand therefore do not deserve statehood at all, clarifying this statement inArticle 21 of the Palestinian Charter, that Palestinians,

“… reject all solutions which are substitutes for the total liberation ofPalestine.”

It is difficult to ignore yet another instance of historical fantasy, wherethe ICJ also quotes extensively from Article 13 of the Mandate forPalestine with respect to Jerusalem’s Holy Places and access to them asone of the foundations for Palestinian rights allegedly violated by thesecurity barrier. The ICJ states in paragraph 129 of the Opinion:

“In addition to the general guarantees of freedom of movement underArticle 12 of the International Covenant on Civil and Political Rights,account must also be taken of specific guarantees of access to the Christian,Jewish and Islamic Holy Places. The status of the Christian Holy Places inthe Ottoman Empire dates far back in time, the latest provisions relatingthereto having been incorporated into Article 62 of the Treaty of Berlin of13 July 1878. The Mandate for Palestine given to the British Government on24 July 1922 included an Article 13, under which:

“All responsibility in connection with the Holy Places and religious buildingsor sites in Palestine, including that of preserving existing rights and ofsecuring free access to the Holy Places, religious buildings and sites and thefree exercise of worship, while ensuring the requirements of public order anddecorum, is assumed by the Mandatory…” Article 13 further stated:“nothing in this mandate shall be construed as conferring … authority to


36

27 The Palestinians pretend that all anti-Israel clauses were abolished in a three day meetingof the Palestinian National Council (PNC) in Gaza in April 1996. In fact, the Council tookonly a bureaucratic decision to establish a committee to discuss abolishment of the clausesthat call for the destruction of Israel as they had promised to do at the outset of the OsloAccords, and no further action has been taken by this ‘committee’ to this day.

28 See Permanent Missions to the UN, at: http://www.palestine-un.org/plo/pna_three.html.(11361)



interfere with the fabric or the management of purely Moslem sacred shrines,the immunities of which are guaranteed.”29

In fact, the 187-word quote is longer than the ICJ’s entire treatment ofnearly three decades of British Mandate, which is summed up in onesentence, and is part of the ICJ rewriting of history:

“In 1947 the United Kingdom announced its intention to completeevacuation of the mandated territory by 1 August 1948, subsequentlyadvancing that date to 15 May 1948.”30

The Preamble of the Mandate for Palestine, as well as the other 28 articlesof this legal document, including eight articles which specifically refer tothe Jewish nature of the Mandate and discuss where Jews are legallypermitted to settle and where they are not, appear nowhere in the Court’sdocument.31

Origin of the “Mandate for Palestine” the ICJ over-looked.

The Mandate for Palestine was conferred on April 24 1920, at the SanRemo Conference, and the terms of the Mandate were further delineatedon August 10 1920, in the Treaty of Sevres.

The Treaty of Sevres, known also as the Peace Treaty, was settled followingWorld War I at Sevres (France), between the Ottoman Empire (Turkey),and the Principal Allied Powers.

Turkey relinquished its sovereignty over Mesopotamia (Iraq) andPalestine, which became British mandates, and Syria (Lebanon included),which became a French mandate.

The Treaty of Sevres was not ratified by all Turks, and a new treaty wasrenegotiated and signed on July 24 1923. It became known as the Treatyof Lausanne.


37

29 See Appendix I. ICJ Advisory Opinion, 9 July 2004.30 Ibid. Paragraph 71. 31 See: Appendix A. Article 2 of the “Mandate for Palestine.”


The Treaty of Sevres in Section VII, Articles 94 and 95, states clearly ineach case who are the inhabitants referred to in paragraph 4 of Article22 of the Covenant of the League of Nations.32

Article 94 distinctly indicates that Paragraph 4 of Article 22 of theCovenant of the League of Nations applies to the Arab inhabitants livingwithin the areas covered by the Mandates for Syria and Mesopotamia.The Article reads:

“The High Contracting Parties agree that Syria and Mesopotamia shall, inaccordance with the fourth paragraph of Article 22.

Part I (Covenant of the League of Nations), be provisionally recognised asindependent States subject to the rendering of administrative advice andassistance by a Mandatory until such time as they are able to stand alone …”[italics by author].

Article 95 of the Treaty of Sevres, however, makes it clear that paragraph4 of Article 22 of the Covenant of the League of Nations was not to beapplied to the Arab inhabitants living within the area to be delineated bythe Mandate for Palestine, but only to the Jews. The Article reads:

“The High Contracting Parties agree to entrust, by application of the provi-sions of Article 22, the administration of Palestine, within such boundariesas may be determined by the Principal Allied Powers, to a Mandatory to beselected by the said Powers. The Mandatory will be responsible for puttinginto effect the declaration originally made on November 2, 1917, by theBritish Government, and adopted by the other Allied Powers, in favour of theestablishment in Palestine of a national home for the Jewish people, it beingclearly understood that nothing shall be done which may prejudice the civiland religious rights of existing non-Jewish communities in Palestine, or therights and political status enjoyed by Jews in any other country ...”

Historically, therefore, Palestine was an ‘anomaly’ within the Mandatesystem, ‘in a class of its own’ – initially referred to by the BritishGovernment as a “special regime.”


38

32 See Appendix F. Article 22 of the Covenant of the League of Nations.


Articles 94 and 95 of the Treaty of Sevres, which the ICJ never discussed,completely undermines the ICJ’s argument that the Mandate forPalestine was a Class “A” Mandate. This erroneous claim renders theCourt’s subsequent assertions baseless.

The ICJ attempts to overcome historical facts.

In paragraph 162 of the Advisory Opinion, the Court states:

“Since 1947, the year when General Assembly resolution 181 (II) was adoptedand the Mandate for Palestine was terminated, there has been a succession ofarmed conflicts, acts of indiscriminate violence and repressive measures onthe former mandated territory” [italics by author].

The Court attempts to ‘overcome’ historical legal facts by making thereader believe that adoption of Resolution 181 by the General Assemblyin 1947 has present-day legal standing.33

The Court also seems to be confused when it states in paragraph 162 ofthe opinion that “the Mandate for Palestine was terminated” – with nosubstantiation [E.H., Unless the Court has confused the termination ofthe British Mandate over the territory of Palestine with the Mandate forPalestine document] as to how this could take place, since the Mandatesof the League of Nations have a special status in international law and areconsidered to be “sacred trusts.” A trust – as in Article 80 of the UNCharter – does not end because the trustee fades away. The Mandate forPalestine, an international accord that was never amended, survived theBritish withdrawal in 1948 and is a binding legal instrument, valid to thisday (See Chapter 9: “Territories – Legality of Jewish Settlement”).

The Court affirmation of the present validity of the Mandate forPalestine is evident in paragraph 49 of the Opinion:

“... It is the Court’s view that the construction of the wall must be deemed tobe directly of concern to the United Nations. The responsibility of the UnitedNations in this matter also has its origin in the Mandate [for Palestine] ...”


39

33 See Chapter 4, Resolution 181, The “Partition Plan”.


Addressing the Arab claim that Palestine was part of the territoriespromised to the Arabs in 1915 by Sir Henry McMahon, the BritishGovernment stated:

“We think it sufficient for the purposes of this Report to state that the BritishGovernment have never accepted the Arab case. When it was first formally pre-sented by the Arab Delegation in London in 1922, the Secretary of State forthe Colonies (Mr. Churchill) replied as follows:

“That letter [Sir H. McMahon’s letter of the 24 October 1915] is quoted asconveying the promise to the Sherif of Mecca to recognize and support theindependence of the Arabs within the territories proposed by him. But thispromise was given subject to a reservation made in the same letter, whichexcluded from its scope, among other territories, the portions of Syria lyingto the west of the district of Damascus. This reservation has always beenregarded by His Majesty’s Government as covering the vilayet of Beirut andthe independent Sanjak of Jerusalem. The whole of Palestine west of the Jordanwas thus excluded from Sir H. McMahon’s pledge.

“It was in the highest degree unfortunate that, in the exigencies of war, theBritish Government was unable to make their intention clear to the Sherif.Palestine, it will have been noticed, was not expressly mentioned in Sir HenryMcMahon’s letter of the 24th October, 1915. Nor was any later referencemade to it. In the further correspondence between Sir Henry McMahon andthe Sherif the only areas relevant to the present discussion which were men-tioned were the Vilayets of Aleppo and Beirut. The Sherif asserted that theseVilayets were purely Arab; and, when Sir Henry McMahon pointed out thatFrench interests were involved, he replied that, while he did not recede fromhis full claims in the north, he did not wish to injure the alliance betweenBritain and France and would not ask ‘for what we now leave to France inBeirut and its coasts’ till after the War. There was no more bargaining overboundaries. It only remained for the British Government to supply the Sherifwith the monthly subsidy in gold and the rifles, ammunition and foodstuffshe required for launching and sustaining the revolt”34 [italics by author].


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34 The “Palestine Royal Report,” July 1937, Chapter II, p. 20.


3 Jerusalem and the Holy Places

The International Court of Justice erroneously assumes that EastJerusalem is occupied Palestinian territory. The Opinion ignores the factthat UN Resolution 181 which recommended turning Jerusalem and itsenvirons into an international city for a limited “period of 10 years” wasnever consummated; in 1947 all Arab states voted as a bloc against it andkept their promise to defy its implementation by force.

In their ‘concern’ for freedom of movement, the ICJ completely ignoresthe fact that since September 2000, Palestinians turned the City of Peaceinto their primary target for suicide bombers, making a barrier toimpede movement of terrorists into the heart of the city an imperative.

In 1968 – soon after Israel took control of East Jerusalem in the 1967Six-Day War – Professor, Judge Sir Elihu Lauterpacht, a renownedexpert in International Law, warned against confusing the issue of theHoly Places and the issue of Jerusalem:1

“Jerusalem, it seems, is at the physical center of the Arab-Israeli conflict. In fact,two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.

J E R U S A L E M A N D T H E H O L Y P L A C E S

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1 Professor, Judge Sir Elihu Lauterpacht, Jerusalem and the Holy Places, Pamphlet No. 19(London, Anglo-Israel Association, 1968). Professor Elihu Lauterpacht is a highlyexperienced academic and practitioner in the field of public international law. He has beenactive as an international litigator, advisor and arbitrator. Among the countries for whichhe has appeared in land and maritime boundary cases are Bahrain, Chile, El Salvador,Israel, Malta and Namibia. He is an ad hoc Judge of the International Court of Justice, andhas been an arbitrator in a number of cases in the International Centre for the Settlementof Investment Disputes and in various other international cases. He is an honoraryProfessor of the University of Cambridge where he taught for thirty five years, and is thefounder and first Director of the Research Centre for International Law.


Not only are the two problems separate, they are also quite distinct in naturefrom one another. So far as the Holy Places are concerned, the question is forthe most part one of assuring respect for the existing interests of the threereligions and of providing the necessary guarantees of freedom of access,worship, and religious administration. Questions of this nature are onlymarginally an issue between Israel and her neighbors and their solutionshould not complicate the peace negotiations. As far as the City of Jerusalemitself is concerned, the question is one of establishing an effectiveadministration of the City which can protect the rights of the variouselements of its permanent population – Christian, Arab and Jewish – andensure the governmental stability and physical security which are essentialrequirements for the city of the Holy Places.”

The ICJ fixation – Internationalization of Jerusalem.

“Nothing was said in the Mandate [for Palestine] about the internationalizationof Jerusalem. Indeed Jerusalem as such is not mentioned, though the HolyPlaces are. And this in itself is a fact of relevance now. For it shows that in1922 there was no inclination to identify the question of the Holy Placeswith that of the internationalization of Jerusalem.”2

Professor Julius Stone notes that Resolution 181 that was rejected by allArab states, “lacked binding force” from the outset, since it requiredacceptance by all parties concerned:

“While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfullyagainst it.”3

Sir Lauterpacht elaborated in 1968 about the new conditions that hadarisen since 1948 with regard to the original thoughts of the interna-tionalization of Jerusalem:

– “The Arab States rejected the Partition Plan and the proposal for theinternationalization of Jerusalem.


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2 Ibid.3 Professor Julius Stone (1907-1985), Israel and Palestine, Assault on the Law of Nations, The

Johns Hopkins University Press, 1981, p. 127. The late Professor Julius Stone was recog-nized as one of the twentieth century’s leading authorities on the Law of Nations. His workrepresents a detailed analysis of the central principles of international law governing theissues raised by the Arab-Israel conflict. He was one of a few scholars to gain outstandingrecognition in more than one field, as one of the world’s best-known authorities in bothJurisprudence and International Law.


– “The Arab States physically opposed the implementation of the GeneralAssembly Resolution. They sought by force of arms to expel the Jewishinhabitants of Jerusalem and to achieve sole occupation of the City.

– “In the event, Jordan obtained control only of the Eastern part of the City,including the Walled City.

– “While Jordan permitted reasonably free access to Christian Holy Places, itdenied the Jews any access to the Jewish Holy Places. This was a fundamentaldeparture from the tradition of freedom of religious worship in the HolyLand, which had evolved over centuries. It was also a clear violation of theundertaking given by Jordan in the Armistice Agreement concluded withIsrael on 3rd April, 1949. Article VIII of this Agreement called for theestablishment of a Special Committee of Israeli and Jordanian representativesto formulate agreed plans on certain matters which, in any case, shall includethe following, on which agreement in principle already exists ... free access tothe Holy Places and cultural institutions and use of the Cemetery on theMount of Olives.

– “The U.N. displayed no concern over the discrimination thus practicedagainst persons of the Jewish faith.

– “The U.N. accepted as tolerable the unsupervised control of the Old Cityof Jerusalem by Jordanian forces – notwithstanding the fact that the presenceof Jordanian forces west of the Jordan River was entirely lacking in any legaljustification.

– “During the period 1948-1952 the General Assembly gradually came toaccept that the plan for the territorial internationalization of Jerusalem hadbeen quite overtaken by events. From 1952 to the present time [1968]virtually nothing more has been heard of the idea in the General Assembly.

“On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreementby attacking the Israeli-held part of Jerusalem. There was no question of thisJordanian action being a reaction to any Israeli attack. It took place notwithstanding explicit Israeli assurances, conveyed to King Husseinthrough the U.N. Commander, that if Jordan did not attack Israel, Israelwould not attack Jordan. Although the charge of aggression is freely madeagainst Israel in relation to the Six-Day War the fact remains that the twoattempts made in the General Assembly in June-July 1967 to secure thecondemnation of Israel as an aggressor failed. A clear and striking majority of


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the members of the U.N. voted against the proposition that Israel was anaggressor.”4

Today, more than 57 years later, Israel has reunited Jerusalem andprovided unrestricted freedom of religion, with access to the Holy Placesin the unified City of Peace assured.

Significant events appear to have escaped the ICJ, which mentionedJerusalem 54 times in its opinion:

“Moslems have enjoyed, under Israeli control, the very freedom which Jewswere denied during Jordanian occupation.”5

The UN General Assembly and the Security Council havelimited influence on the future of Jerusalem.

Sir Lauterpacht explains:

“(i) The role of the U.N. in relation to the future of Jerusalem and the HolyPlaces is limited. In particular, the General Assembly has no power ofdisposition over Jerusalem and no right to lay down regulations for the HolyPlaces. The Security Council, of course, retains its powers under Chapter VIIof the Charter in relation to threats to the peace, breaches of the peace andacts of aggression, but these powers do not extend to the adoption of anygeneral position regarding the future of Jerusalem and the Holy Places.

“(ii) Israel’s governmental measures in relation to Jerusalem – both New andOld – are lawful and valid.”

Originally, internationalization of Jerusalem was part of a much broaderproposal [UN Resolution 181] that all the Arab states rejected, both atthe UN and ‘on the ground’ – Arab’s rejection by armed invasion ofPalestine by the forces of Egypt, Trans-Jordan, Syria, Lebanon, Iraq, andcontingents from Saudi Arabia and Yemen … aimed at destroying Israel.


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4 Professor, Judge Sir Elihu Lauterpacht, Jerusalem and the Holy Places, Pamphlet No. 19(London, Anglo-Israel Association, 1968).

5 Ibid.


The outcome of consistent Arab aggression was best described by JudgeStephen Schwebel:

“… as between Israel, acting defensively in 1948 and 1967, on the one hand,and her Arab neighbors, acting aggressively in 1948 and 1967, on the other,Israel has better title in the territory of what was Palestine, including thewhole of Jerusalem …”6 [italics by author].

The Myth of ‘Two Jerusalems,’ an Arab ‘East Jerusalem’and a Jewish ‘West Jerusalem.’

Jerusalem was never an Arab city; Jews have held a majority in Jerusalemsince 1870,7 and ‘east-west’ is a geographic, not a political designation.It is no different than claiming the Eastern Shore of Maryland in theU.S. should be a separate political entity from the rest of that state.

Although uniting the city transformed all of Jerusalem into the largestcity in Israel and a bustling metropolis, even moderate Palestinianleaders reject the idea of a united city. Their minimal demand for ‘justEast Jerusalem’ really means the Jewish holy sites (including the JewishQuarter and the Western Wall), which Arabs have historically failed toprotect, and the transfer to Arabs of neighborhoods that house a significantpercentage of Jerusalem’s present-day Jewish population. Most of thatcity is built on rock-strewn empty land around the city that was in the


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6 Professor, Judge Stephen M. Schwebel, What Weight to Conquest? in Justice in InternationalLaw, Cambridge University Press, 1994. Judge Schwebel has served on the InternationalCourt since 15 January 1981. He was Vice-President of the Court from 1994 to 1997 andhas been President from 1997 to 2000. A former Deputy Legal Adviser of the United StatesDepartment of State and Burling Professor of International Law at the School of AdvancedInternational Studies of The Johns Hopkins University (Washington). Judge Schwebel isthe author of several books and over 150 articles on international law. He is HonoraryPresident of the American Society of International Law.Opinions quoted in this critiques are not derived from his position as a judge of the ICJ.

7 For these and more statistics, see “Jerusalem: The City’s Development from a HistoricalViewpoint,” at: http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1998/7/Jerusalem-%20The%20City-s%20Development%20from%20a%20Historica. (10748)



public domain for the past 38 years. With an overall population of704,000 (June 2005), separating East Jerusalem and West Jerusalem isas viable and acceptable as the notion of splitting Berlin into two citiesagain, or separating East Harlem from the rest of Manhattan withinNew York City.

Jerusalem’s Jewish link: Historic, Religious, Political.

Jerusalem, wrote historian Martin Gilbert,8 is not a “‘mere’ capital: Itholds the central spiritual and physical place in the history of the Jews asa people.”9

For more than 3,000 years, the Jewish people have looked to Jerusalemas their spiritual, political, and historical capital, even when they did notphysically rule over the city. Throughout its long history, Jerusalem hasserved, and still serves, as the political capital of only one nation – theone belonging to the Jews. Its prominence in Jewish history began in1004 B.C.E., when King David declared the city the capital of the firstJewish kingdom.10 David’s successor and son, King Solomon, built theFirst Temple there, according to the Bible, as a holy place to worship theAlmighty. History, however, would not be kind to the Jewish people.Nearly four hundred ten years after King Solomon completedconstruction of Jerusalem [in 586 B.C.E.], the Babylonians (early ancestorsto today’s Iraqis) seized and destroyed the city, forcing the Jews intoexile. Fifty years later, the Jews, or Israelites as they were called, were per-mitted to return after Persia (present-day Iran) conquered Babylon. TheJews’ first order of business was to reclaim Jerusalem as their capital andrebuild the Holy Temple, recorded in history as the Second Temple.


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8 Martin Gilbert is an Honorary Fellow of Merton College Oxford and the biographer ofWinston Churchill. He is the author of the “Jerusalem: Illustrated History Atlas”(Vallentine Mitchell) and “Jerusalem: Rebirth of the City” (Viking-Penguin).

9 Martin Gilbert, “Jerusalem: A Tale of One City,” The New Republic, Nov. 14 1994. See:http://web.idirect.com/~cic/jerusalem/martinGilbertArticle.htm. (11362)

10 Ibid.



Jerusalem was more than the Jewish kingdom’s political capital. It was aspiritual beacon. During the First and Second Temple periods, Jewsthroughout the kingdom would travel to Jerusalem three times yearly forthe Jewish holy days of Sukkot, Passover, and Shavuot, until the RomanEmpire destroyed the Second Temple in 70 C.E. and ended Jewishsovereignty over Jerusalem for the next 1,900 years. Despite that fate,Jews never relinquished their bond to Jerusalem or, for that matter, toEretz Yisrael – the Land of Israel.

No matter where Jews lived throughout the world for those two millennia,their thoughts and prayers were directed toward Jerusalem. Even today,whether in Israel, the United States, or anywhere else, Jewish ritualpractice, holiday celebration and lifecycle events include recognition ofJerusalem as a core element of the Jewish experience. Consider that:

• Jews in prayer always turn toward Jerusalem.

• Arks (the sacred chests) that hold Torah scrolls in synagoguesthroughout the world face Jerusalem.

• Jews end Passover Seders each year with the words: “Next year inJerusalem”; the same words are pronounced at the end of YomKippur, the most solemn day of the Jewish year.

• A three-week moratorium on weddings in the summer recalls thebreaching of the walls of Jerusalem by the Babylonian army in 586B.C.E. That period culminates in a special day of mourning – TishaB’Av (the 9th day of the Hebrew month Av) – commemorating thedestruction of both the First and Second Temples.

• Jewish wedding ceremonies are joyous occasions marked by sorrowover the loss of Jerusalem. The groom recites a biblical verse fromthe Babylonian Exile: “If I forget thee, O Jerusalem, let my righthand forget her cunning,” and breaks a glass in commemoration ofthe destruction of the Temples.


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Even body language, often said to tell volumes about a person, reflectsthe importance of Jerusalem to Jews as a people and, arguably, the lowerpriority the city holds for Muslims:

• When Jews pray they face Jerusalem; in Jerusalem they pray facing theTemple Mount.

• When Muslims pray, they face Mecca; in Jerusalem they pray withtheir backs to the city.

• Even at burial, a Muslim face is turned toward Mecca.

Finally, consider the number of times Jerusalem is mentioned in the tworeligions’ holy books:

• The Old Testament mentions Jerusalem 349 times. Zion, anothername for Jerusalem, is mentioned 108 times.11

• The Quran never mentions Jerusalem – not even once.

Even when others controlled Jerusalem, Jews have maintained a physicalpresence in the city, despite being persecuted and impoverished. Beforethe advent of modern Zionism in the 1880s, Jews were moved by a formof religious Zionism to live in the Holy Land, settling particularly infour holy cities: Safed, Tiberias, Hebron, and most importantly,Jerusalem. Consequently, Jews constituted a majority of the city’spopulation for generations. In 1898, “In this City of the Jews, where theJewish population outnumbers all others three to one …” Jewsconstituted 75 percent12 of the Old City population in what Secretary-General Kofi Annan calls East Jerusalem. In 1914, when the Ottoman


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11 See Ken Spiro, “Jerusalem: Jewish and Moslem Claims to the Holy City,” at http://www.aish.com/Israel/articles/ _Jewish_and_Moslem_Claims_to_the_Holy_City.asp. (11341)

12 “The eighty thousand Jews in Palestine, fully one-half are living within the walls, or in thetwenty-three colonies just outside the walls, of Jerusalem. This number – forty thousandJews in Jerusalem – is not an estimate carelessly made …” Edwin S. Wallace, Former U.S.Consul “The Jews in Jerusalem” Cosmopolitan magazine (1898; original pages of article arein possession of the author).



Turks ruled the city, 45,000 Jews made up a majority of the 65,000residents. And at the time of Israeli statehood in 1948, 100,000 Jewslived in the city, compared to only 65,000 Arabs.13 Prior to unification,Jordanian-controlled East Jerusalem was a mere 6 square kilometers,compared to 38 square kilometers on the ‘Jewish side.’ Arab claims toJerusalem, a Jewish city by all definitions, reflect a “what’s-mine-is-mine,what’s-yours-is-mine” disingenousness.


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13 “JERUSALEM – Whose City?” at http://christianactionforisrael.org/whosecity.html.(10744)




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Recommended “Partition Plan,” November 29, 1947


R E S O L U T I O N 1 8 1 – T H E “ P A R T I T I O N P L A N ”

4 Resolution 181 – the “Partition Plan”

The International Court of Justice insists that as a UN institution itmust take the case of the security fence, based on two major documents:The “Mandate for Palestine” and the November 1947 UN GeneralAssembly Resolution 1811 [the “Partition Plan”], a non-binding recom-mendation that was never legally consummated and one that all Arabsrejected by use of force.2

Had the recommendations of UN Resolution 181 been accepted andimplemented by both parties, it would have been the foundation for thecreation in Palestine of an Arab state and a Jewish state, and as a resultwould have terminated the Mandate for Palestine.

The Court’s careless ‘legal review’ of the status of the Territories reachesits apex in the way the ICJ relates to Resolution 181. The Court ignoresArab total rejectionism of the “Partition Plan” and views therecommendation of Resolution 181 as if it was a valid Security Councildirective.

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1 UN General Assembly Resolution 181 (II). Future government of Palestine. November 291947. See at: http://www.mefacts.com/cache/html/un-resolutions/10063.htm. (10063)

2 “Appeals to all Governments and all peoples to refrain from taking action which mighthamper or delay the carrying out of these recommendations [to partition] ,” UN Resolution181, A, (d) [italics by author].



The ICJ cites Resolution 181 as one of the legal pillars supporting theright of Palestinian Arabs to self-determination alongside the “Mandatefor Palestine.”

It appears that the ICJ was unaware of the fact that in November 1947,all Arab states voted as a bloc against Resolution 181 and kept theirpromise to defy its implementation by force.

Aware of Arab past aggression, Resolution 181, in paragraph C, calls onthe Security Council to:

“… determine as a threat to the peace, breach of the peace or act of aggression,in accordance with Article 39 of the Charter, any attempt to alter by force thesettlement envisaged by this resolution” [italics by author].

The ones who sought to alter by force the settlement envisioned inResolution 181 were the Arabs who threatened bloodshed if the UNwere to adopt the Resolution:

“The Government of Palestine [E.H., that is, the British mandategovernment] fear that strife in Palestine will be greatly intensified when theMandate is terminated, and that the international status of the UnitedNations Commission will mean little or nothing to the Arabs in Palestine, towhom the killing of Jews now transcends all other considerations. Thus, theCommission will be faced with the problem of how to avert certainbloodshed on a very much wider scale than prevails at present. … The Arabshave made it quite clear and have told the Palestine government that they donot propose to co-operate or to assist the Commission, and that, far from it,they propose to attack and impede its work in every possible way. We have noreason to suppose that they do not mean what they say”3 [italics by author].

Arab intentions and deeds did not fare better after Resolution 181 wasadopted:

“Taking into consideration that the Provisional Government of Israel hasindicated its acceptance in principle of a prolongation of the truce in


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3 United Nations Palestine Commission, First Monthly Progress Report to the SecurityCouncil. A/AC.21/7, 29 January 1948. See: http://www.mefacts.com/cache/html/un-resolutions/10923.htm. (10923)



Palestine; that the States members of the Arab League have rejected successiveappeals of the United Nations Mediator, and of the Security Council in itsresolution 53 (1948) of 7 July 1948, for the prolongation of the truce inPalestine; and that there has consequently developed a renewal of hostilitiesin Palestine.”4

Resolution 181 reads:

“Having met in special session at the request of the mandatory Power toconstitute and instruct a Special Committee to prepare for the considerationof the question of the future Government of Palestine … and to prepareproposals for the solution of the problem, and … Recommends to the UnitedKingdom, as the mandatory Power for Palestine, and to all other Membersof the United Nations the adoption and implementation, with regard to thefuture Government of Palestine, of the Plan of Partition with EconomicUnion set out below …” [italics by author].

The ICJ in its preamble states:

“Recalling relevant General Assembly resolutions, including resolution181 (II) of 29 November 1947, which partitioned mandated Palestine intotwo States, one Arab and one Jewish, …”

In fact, Resolution 181 was a non-binding resolution that onlyrecommended partition. It never “partitioned” or “mandated” anything asthe ICJ tries to inject.

The ICJ continues the discussion on the “Partition Plan” in paragraph71 of the opinion:

“In 1947 the United Kingdom announced its intention to completeevacuation of the mandated territory by 1 August 1948, subsequentlyadvancing that date to 15 May 1948. In the meantime, the General Assemblyhad on 29 November 1947 adopted resolution 181 (II) on the futuregovernment of Palestine, which ‘Recommends to the United Kingdom …and to all other Members of the United Nations the adoption andimplementation … of the Plan of Partition’ of the territory, as set forth in theresolution, between two independent States, one Arab, the other Jewish, as


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4 Security Council Resolution S/RES/ 54 (1948) at http://www.mefacts.com/cache/html/un-resolutions/10894.htm. (10894)



well as the creation of a special international régime for the City of Jerusalem.The Arab population of Palestine and the Arab States rejected this plan,contending that it was unbalanced; on 14 May 1948, Israel proclaimed itsindependence on the strength of the General Assembly resolution; armedconflict then broke out between Israel and a number of Arab States and thePlan of Partition was not implemented.”

The 1947 “Partition Plan” was the last of a series of recommendationsthat had been drawn up over the years by the Mandator and by internationalcommissions, plans designed to reach an historic compromise betweenArabs and Jews in western Palestine. The first was in 1922 when GreatBritain obtained the League of Nations’ approval under Article 25 of theMandate for Palestine to cut away the territory east of the Jordan River– Trans-Jordan, today’s Jordan, for the benefit of the Arabs of Palestine.But this did not satisfy the Arabs who wanted the entire country.

Every scheme since 1922 has been rejected by the Arab side, includingdecidedly pro-Arab recommendations. This was not because thesuggestions were “unbalanced,” as the ICJ has been told in Arab affidavitsand as stated in paragraph 71 of the Court opinion, but because theseplans recognized the Jews as a nation and gave the Jewish citizens ofMandate Palestine political dominance.

The ICJ’s use of the term “unbalanced” in describing the reason for Arabrejectionism of Resolution 181 hardly fits reality. 77 percent of thelandmass of the original Mandate for the Jews was excised in 1922 tocreate a fourth Arab state: Trans-Jordan.

In the discussions leading to the formulation of the “Partition Plan,” therepresentative of the Jewish Agency for Palestine addressed the injusticeof the plan to the Jewish people:

“According to David Lloyd George, then Prime Minister, the BalfourDeclaration implied that the whole of Palestine, including Transjordan,should ultimately become a Jewish state. Transjordan had, nevertheless, been


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severed from Palestine in 1922 and had subsequently been set up as an Arabkingdom. Now a second Arab state was to be carved out of the remainder ofPalestine, with the result that the Jewish National Home would represent lessthan one eighth of the territory originally set aside for it. Such a sacrificeshould not be asked of the Jewish people.5

“Referring to the Arab states established as independent countries since theFirst World War, he said that 17,000,000 Arabs now occupied an area of1,290,000 square miles, including all the principal Arab and Moslem centres,while Palestine, after the loss of Transjordan, was only 10,000 square miles;yet the majority plan proposed to reduce it by one half. UNSCOP proposedto eliminate Western Galilee from the Jewish State; that was an injustice anda grievous handicap to the development of the Jewish State.”6

The ICJ assumes that Israel’s independence is a resultof a partial implementation of the “Partition Plan.”

The ICJ Bench states in paragraph 71 of its opinion that:

“… on 14 May 1948, Israel proclaimed its independence on the strength ofthe General Assembly resolution.”

Resolution 181 recognized the Jewish right to statehood, but its validityas a potentially legal and binding document was never consummated.Like the schemes that preceded it, Resolution 181’s validity hinged onacceptance by both parties of the General Assembly’s recommendation.

Sir Lauterpacht, a renowned expert on international law and editor ofOppenheim’s International Law, clarified that, from a legal standpoint,the 1947 UN Partition Resolution had no legislative character to vestterritorial rights in either Jews or Arabs. In a monograph relating to oneof the most complex aspects of the territorial issue, the status of


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5 Yearbook of the United Nations 1947-48. 1949.I.13. December 31 1948. See at:http://www.mefacts.com/cache/html/un-documents/11270.htm. (11270)

6 Ibid.



Jerusalem,7 Lauterpacht wrote that to be a binding force, the “PartitionPlan” would have had to arise from the principle pacta sunt servanda,8

that is, from agreement of the parties at variance to the proposed plan.In the case of Israel, Lauterpacht explains:

“… the coming into existence of Israel does not depend legally upon theResolution. The right of a State to exist flows from its factual existence –especially when that existence is prolonged, shows every sign of continuanceand is recognised by the generality of nations.”

Reviewing Lauterpacht’s arguments, Professor Stone added that Israel’s“legitimacy” or the “legal foundation” for its birth does not reside withthe United Nations’ “Partition Plan,” which as a consequence of Arabactions became a dead issue. Professor Stone concluded:

“… The State of Israel is thus not legally derived from the partition plan, butrests (as do most other states in the world) on assertion of independence byits people and government, on the vindication of that independence by armsagainst assault by other states, and on the establishment of orderlygovernment within territory under its stable control.”9

Such attempts by Palestinians (and now by the ICJ) to ‘roll back theclock’ and resuscitate Resolution 181 almost six decades after itsrejection as if nothing had happened, are totally inadmissible. BothPalestinians and their Arab brethren in neighboring countries renderedthe plan null and void by their own subsequent aggressive actions.

Arabs absolute rejectionism of UN Resolution 181.

Following passage of Resolution 181 by the General Assembly, Arabcountries took the dais to reiterate their absolute rejection of therecommendation and intention to render implementation of Resolution181 a moot question by the use of force. These examples from the


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8 “Treaties must be honored,” the first principle of international law.9 Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The Johns

Hopkins University Press, 1981, p. 127.


transcript of the General Assembly plenary meeting on November 291947 speak for themselves:

“Mr. JAMALI (Iraq): … We believe that the decision which we have nowtaken … undermines peace, justice and democracy. In the name of myGovernment, I wish to state that it feels that this decision is antidemocratic,illegal, impractical and contrary to the Charter. … Therefore, in the name ofmy Government, I wish to put on record that Iraq does not recognize thevalidity of this decision, will reserve freedom of action towards itsimplementation, and holds those who were influential in passing it againstthe free conscience of mankind responsible for the consequences.”

“Amir. ARSLAN (Syria): … Gentlemen, the Charter is dead. But it did notdie a natural death; it was murdered, and you all know who is guilty. Mycountry will never recognize such a decision [Partition]. It will never agree tobe responsible for it. Let the consequences be on the heads of others, not onours.”

“H. R. H. Prince Seif El ISLAM ABDULLAH (Yemen): The Yemendelegation has stated previously that the partition plan is contrary to justiceand to the Charter of the United Nations. Therefore, the Government ofYemen does not consider itself bound by such a decision … and will reserveits freedom of action towards the implementation of this decision.”10

The “Partition Plan” was met not only by verbal rejection on the Arabside but also by concrete, bellicose steps to block its implementation anddestroy the Jewish polity by force of arms, a goal affirmed publicly bythe Arabs even before Resolution 181 was brought to a vote.

The ICJ simply ignores the unpleasant fact that the Arabs not onlyrejected the compromise and took action to prevent establishment of aJewish state, but also blocked establishment of an Arab state under the“Partition Plan” not only before the 1948 Israel War of Independence,but also after the war when they themselves controlled the West Bank (1948-1967), rendering the recommendation a still birth.


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10 UN GA “Continuation of the discussion on the Palestinian question.” Hundred andtwenty-eighth plenary meeting. A/PV.128, November 29 1947. (11363)



Professor Stone wrote about this novelty of resurrection in 1981 whenhe analyzed a similar attempt by pro-Palestinians at the UN to rewritethe history of the conflict (published as ‘Studies’). Stone called it “revivalof the dead”:

“To attempt to show, as these studies do, that Resolution 181(II) ‘remains’ inforce in 1981 is thus an undertaking even more miraculous than would be therevival of the dead. It is an attempt to give life to an entity that the Arab stateshad themselves aborted before it came to maturity and birth. To propose thatResolution 181(II) can be treated as if it has binding force in 1981, [E.H.,the year Professor Stone’s book was published] for the benefit of the sameArab states, who by their aggression destroyed it ab initio,11 also violates ‘gen-eral principles of law,’ such as those requiring claimants to equity to come‘with clean hands,’ and forbidding a party who has unlawfully repudiated atransaction from holding the other party to terms that suit the laterexpediencies of the repudiating party”12 [italics by author].

In its narrative of events, the International Court of Justice’s opiniondoes not even mention the fact that Jordan (at the time, Trans-Jordan)crossed the international border (the Jordan River) and illegallyoccupied part of Mandate Palestine, annexing and labeling it the ‘WestBank’ to make it sound like a natural part of the ‘East Bank’ (Trans-Jordan). Indeed, it was Jordan that controlled the West Bank territoryfor 19 years between 1948 and 1967.13


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11 In Latin: From the beginning.12 Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The Johns

Hopkins University Press, 1981, p. 128.13 “The 1948 Arab-Israeli War – Prior to the UN General Assembly’s November 1947

decision to partition Palestine, King Abdullah had proposed sending the Arab Legion todefend the Arabs of Palestine. Reacting to the passing of the partition plan, he announcedJordan’s readiness to deploy the full force of the Arab Legion in Palestine. An Arab Leaguemeeting held in Amman two days before the expiration of the British mandate concludedthat Arab countries would send troops to Palestine to join forces with Jordan’s army. …[Jordan] Parliament unanimously approved a motion to unite the two banks of the JordanRiver, constitutionally expanding the Hashemite Kingdom of Jordan in order to safeguardwhat was left of the Arab territory of Palestine from further Zionist expansion.” See theofficial Hashemite Kingdom of Jordan website at: http://www.kinghussein.gov.jo/his_palestine.html. (10634)



The ICJ describes these scores of events in seven words: “The Plan ofPartition was not implemented.”14

The ICJ fails to read the fine print in the Resolutions it cites. The ICJembraces the General Assembly’s generous annexation of Jerusalem(discussed later in this critique) as part of ‘Occupied PalestinianTerritory’ – constantly referring to “the Occupied Palestinian Territories,including East Jerusalem.” In the same breath, the ICJ cites Resolution181 that leaves the status of Jerusalem in abeyance, in Part III (D) callingfor a temporary ‘special regime’ for the City of Jerusalem:

“… It shall remain in force in the first instance for a period of ten years, unlessthe Trusteeship Council finds it necessary to undertake a re-examination ofthese provisions at an earlier date. After the expiration of this period thewhole scheme shall be subject to re-examination by the Trusteeship Councilin the light of the experience acquired with its functioning. The residents ofthe City shall be then free to express by means of a referendum their wishesas to possible modifications of the regime of the City” [italics by author].

Again, this never took place because the “Partition Plan” became a deadissue. If it is not a dead issue, then logically, after almost 59 years it istime to call for a referendum (as stated in Resolution 181, see above) ofall Jerusalemites, Jews and Arabs, to decide the status of the city that hasalways had a Jewish majority as far back as 1870.

Even the UN recognized that Resolution 181 was a moot issue. Had theICJ examined UN records, it would have had to address a July 30 1949,working paper of the UN Secretariat, entitled The Future of ArabPalestine and the Question of Partition, which noted that:

“The Arabs rejected the United Nations Partition Plan so that any commentof theirs did not specifically concern the status of the Arab section ofPalestine under partition but rather rejected the scheme in its entirety.


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14 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraph 71.


“… On 18 September the Progress Report of the Mediator was submitted tothe General Assembly. In evaluating the situation of the proposed Arab State,the Mediator stated: ‘As regards the parts of Palestine under Arab control, nocentral authority exists and no independent Arab State has been organized orattempted. This situation may be explained in part by Arab unwillingness toundertake any step which would suggest even tacit acceptance of partition,and by their insistence on a unitary State in Palestine. The Partition Planpresumed that effective organs of state government could be more or lessimmediately set up in the Arab part of Palestine. This does not seem possibletoday in view of the lack of organized authority springing from ArabPalestine itself, and the administrative disintegration following thetermination of the Mandate.’”15

The Secretariat considered Resolution 181 a dead issue, noting:

“… an Arab State for which the Partition Plan provided has not materialized …”16

In the eyes of the International Court of Justice, even the 1948 IsraelWar of Independence – before the occupation and clearly an Arab war ofaggression – gets the same treatment as the 1967 Six-Day War. The ICJ’srendition of events exonerates the Arabs of any complicity, skippingmerrily over uncomfortable facts in the process:

“The Arab population of Palestine and the Arab States rejected the[Partition] plan, contending that it was unbalanced ; on 14 May 1948, Israelproclaimed its independence on the strength of the General Assembly reso-lution; armed conflict then broke out between Israel and a number of ArabStates and the Plan of Partition was not implemented”17 [italics by author].

Far more significantly, from 1922 forward and through nearly threedecades of British Mandatory rule, the Arabs systematically rejectedevery plan for co-existence that included any form of Jewish political


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15 United Nations Conciliation Commission for Palestine: The Future of Arab Palestine andthe Question of Partition. A/AC.25/W.19, July 30 1949. See: http://www.mefacts.com/cache/html/un-documents/11070.htm. (11070)

16 Ibid.17 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraph 71.



empowerment whatsoever. These plans included British attempts tocreate a joint legislature, insuring the Arabs would have had anoverwhelming majority and that would have enabled them to cut off anyfurther Jewish immigration.These same Arabs even refused to establish anArab Agency for development of the Arab sector, which would parallel theJewish Agency.18

In the fall of 1947, the UN Ad Hoc Committee on PalestinianQuestion19 tried, to no avail, to ‘bring the Arabs around.’ Had the ICJread the minutes of this damning UN document, they would find thisrejectionism clearly established. The Special Rapporteur, Thor Thors ofIceland, wrote to the Security Council days before the historic vote onNovember 25 1947. He cited how the Arab Higher Committee first:

“… rejected the recommendations of the Special Committee on Palestineand advocated the establishment on democratic lines, in the whole ofPalestine, of an Arab State which would protect the legitimate rights andinterests of all minorities.”20

and later:

“… did not accept an invitation to sit with the members of Sub-Committee 1when the latter discussed the question of boundaries. The Arab HigherCommittee was prepared to assist and furnish information only with regardto the question of the termination of the Mandate and the creation of aunitary State.”21

Suffice it to say, the use of the terms “rejection” and “contending” in theICJ’s ‘historical narrative’ hardly befit 1948 realities. “Rejection” was


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18 Christopher Sykes, Cross Roads to Israel – Palestine from Balfour to Bevin, CollinsLondon 1965, p. 81.

19 General Assembly, A/516, November 25 1947, at http://www.mefacts.com/cache/html/un-documents/11290.htm. (11290)

20Ibid.

21 In lieu of the two independent States, the city of Jerusalem under an international regime,and the economic union proposed.



expressed in nearly six months of guerrilla warfare by local Arabs (today’sPalestinians) against the Jews of Palestine (today’s Israelis), targetingprimarily civilians. In the midst of this period (January 29 1948), theFirst Monthly Progress Report of the UN-appointed PalestineCommission was submitted to the Security Council. How does the UNdescribe what actually transpired? Actualization of Resolution 181 wasplaced in the hands of a “commission … with direct responsibility forimplementing the measures recommended by the General Assembly.”22

Implementation of Resolution 181’s recommendations hinged not onlyon the five Member States appointed to represent the UN (Bolivia,Czechoslovakia, Denmark, Panama, Philippines) and Great Britain, butfirst and foremost on the participation of the two sides who were invitedto appoint representatives. The Commission then reported:

“… The invitation extended by the [181] resolution was promptly acceptedby the Government of the United Kingdom and by the Jewish Agency forPalestine, both of which designated representatives to assist the commission.… As regards [to] the Arab Higher Committee, the following telegraphicresponse was received by the Secretary-General on 19 January:

ARAB HIGHER COMMITTEE IS DETERMINED PRESIST[PERSIST] IN REJECTION PARTITION AND IN REFUSALRECOGNIZE UN[O] RESOLUTION THIS RESPECT ANDANYTHING DERIVING THEREFROM [THERE FROM]. FOR THESEREASONS IT IS UNABLE [TO] ACCEPT [THE] INVITATION.”23

ICJ – “Armed conflict then broke out.”

The “armed conflict [that] then broke out,”24 in the words of theInternational Court of Justice, was Israel’s 1948 War of Independence.It was actually the second stage of the Arab war of aggression, launched


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22 United Nations Palestine Commission. First Monthly Progress Report To The SecurityCouncil. A/AC.21/7. 29 January 1948. See at: http://www.mefacts.com/cache/html/un-resolutions/10923.htm. (10923)

23 Ibid.24 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraph 71.



the day after Israel’s acceptance of Resolution 181 on November 291947. It was a pre-planned and coordinated invasion by the armed forcesof Egypt, Trans-Jordan, Syria, Lebanon, Iraq, and contingents fromSaudi Arabia and Yemen forces across the international borders ofMandate Palestine, boasting they would “throw the Jews into the sea.”

On May 18 1948 in response to an urgent cablegram to the Iraqidelegate to the UN, the reply affirmed that there were Iraqi troops inPalestine in areas where Jews are the majority, declaring that:

“… Elements of our armed forces entered Palestine without discriminationeither to the character of areas or to the creed of the inhabitants [invadedJewish areas] … Units of Iraqi forces are now operating west of the Jordan.… Their military objectives … are the suppression of lawless Zionist terrorismwhich was dangerously spreading all over the country, and restoration ofpeace and order. Such objectives will result in enabling the people of Palestineto set up a ‘united state’ in which both Arabs and Jews will enjoy equalDemocratic rights. … Upon the termination of the Mandate on the 15thMay, 1948, no legal authority was constituted to take its place. In the sametime the terrorism and the aggression of a minority assumed vast proportionsand resulted in atrocities and massacre leading up to a complete state ofanarchy. … The Arab League, as a regional organization interested in keepingthe peace in that region could not stand by without action. … Concerningwhat is called areas (towns, cities, districts) of Palestine where Jews are in themajority, it must again be stated that the division of the country into suchunits for the present purpose is misleading and can be entertained on thebasis of partition which we reject.”25

On May 22 1948, in response to a similar cablegram to the Lebaneseforeign minister from the Security Council inquiring whether Lebanonhad invaded, the foreign minister wrote the Security Council:

“[Lebanese forces] are operating in northern Palestine. Their militaryobjectives are to help pacify Palestine in cooperation with the forces of otherStates of the Arab League, as stated in the memorandum of the


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25 United Nations Security Council Document S/769 May 22 1948. See: http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/65eb4dccbb362b5585256e4c006f6a02!OpenDocument (11365)



Secretary-General of the Arab League on May 1 (document S/745). … TheLeague of Arab States is responsible for the exercise of political functions inany and all parts of Palestine. … The League of Arab States is not nownegotiating with the Jews on a political settlement in Palestine and will notenter into such negotiations so long as the Jews persist in their intention andtheir efforts to establish a Jewish state in Palestine.”26

A similar query to the foreign minister of Trans-Jordan was ignored. Thefollowing questions were not answered:

“Are armed element of your armed forces or irregular forces sponsored byyour government now operating (1) in Palestine (2) in areas (towns, cities,districts) of Palestine where the Jews are in the majority?”27

Instead the Trans-Jordanian foreign minister complained in a shortcablegram that:

“the government of the United States of America [who had penned thequestions for the Security Council] has not yet recognized the government ofthe Hashemite Kingdom of Transjordan … yet [it] recognized the so-calledJewish government within a few hours.”

The Arabs rejected repeated calls by the Security Council for a cease-fireand only agreed to a four-week truce after being warned by the SecurityCouncil on May 29 1948:

“… if the present resolution is rejected by either party or by both, or if,having been accepted, it is subsequently repudiated or violated, the situationin Palestine will be reconsidered with a view to action under Chapter VII ofthe Charter.”28


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26 United Nations Security Council Document S/770, May 22 1948, at: http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/98be7a17e488f06985256db200676705!OpenDocument. (11364)

27 Security Council Document S/760, May 20 2003 (the date is incorrect in the original),http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/aa99ba96c0a95d5985256db2006928bd!OpenDocument. (11366)

28 Security Council Document S/801, May 29 1948, at: http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/34235b8f785c7b4485256e76006e58da!OpenDocument. (11367)



The documents cited above are only a few examples of the evidenceavailable to the ICJ, all of which appear to have been ignored.

Israel overcomes Arab aggression at a terrible cost.

The first cease-fire in the 18-month war finally took effect on June 111948.

While Israel prevailed, one percent of the pre-war Jewish population(6,000 persons) was killed. In American terms, that is equivalent to 2.8million American civilians and soldiers being killed over an 18-monthperiod.29 The facts that there was a clear aggressor and a clear target in the“armed conflict” in 1948 appears in a host of UN documents that are asimmaterial in the International Court of Justice’s eyes as the fate of over athousand Israelis, again, mostly civilians, deliberately murdered in coldblood by Palestinian suicide bombers and other Palestinian terrorists since2000.

What became of Resolution 181? On May 17 1948 – after the invasionbegan – the Palestine Commission designed to implement Resolution181 adjourned sine die [indefinitely], after the General Assembly:

“appointed a United Nations Mediator in Palestine, which relieves theUnited Nations Palestine Commission from the further exercise of itsresponsibilities.”

At the time, some thought the “Partition Plan” could be revived, but bythe end of the war, Resolution 181 had become a moot issue as realitieson the ground made establishment of an armistice-line (the Green Line),a temporary ceasefire line expected to be followed by peace treaties, themost constructive path to solving the conflict.

The Palestinians, for their part, continued to reject Resolution 181,viewing the Jewish state as “occupied territory,” a label that exists to this


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29 Between November 30 1947 – July 20 1949.


day in PLO and Palestinian Authority maps, insignia and even statisticaldata. Rejection of any form of Jewish polity anywhere in westernPalestine was underscored in the PLO’s 1964 Charter.

The Arab Palestinians and the “clean hand” principle.

Only a few years ago voices emerged in Arab circles suggesting that the“Partition Plan” be the basis of a “just and lasting peace,” rather thandemanding a return to the Green Line. The ICJ is the first highlyregarded institution to fall for the bait, claiming that Palestinian rights toself-determination emanate from the very document repudiated by theArabs for almost sixty years. In 1976, for example, the Arab League wasstill berating the Family of Nations at the UN that: “In its resolution181(II) of 29 November 1947, the General Assembly imposed thepartition on Palestine against the expressed wishes of the majority of itspopulation.”30

The International Court of Justice, by accepting testimony from thePalestinians as interested parties and declaring that it is the ICJ’s solemnresponsibility to stand up for Palestinian rights, performed another flip-flop by declaring that in such instances (i.e., the “clean hands” test) thePalestinians are exempt.

In paragraphs 63 and 64 of the opinion, the ICJ says:

“Israel has contended that Palestine, given its responsibility for acts ofviolence against Israel and its population which the wall is aimed ataddressing, cannot seek from the Court a remedy for a situation resultingfrom its own wrongdoing. In this context, Israel has invoked the maximnullus commodum capere potest de sua injuria propria, which it considers to be asrelevant in advisory proceedings as it is in contentious cases. Therefore, Israelconcludes, good faith and the principle of ‘clean hands’ provide a compelling


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30 At a meeting of the Committee on the Exercise of the Inalienable Rights of the PalestiniansPeople, General Assembly Document A/AC.183/L.22, April 26 1976, at: http://domino.un.org/UNISPAL.NSF/0/842f480902f25fef85256e2f006a82d2?OpenDocument.(11374)



reason that should lead the Court to refuse the General Assembly’s request.The Court does not consider this argument [the ‘clean hands’ argumentraised by Israel] to be pertinent. As was emphasized earlier, it was the GeneralAssembly which requested the advisory opinion, and the opinion is to begiven to the General Assembly, and not to a specific State or entity.”

Professor Stone explains the “clean hands” concept:

“… there are also certain other legal grounds, rooted in basic notions ofjustice and equity, on which the Arab states (and the Palestinians whom theyrepresented in these matters) should not, in any case, be permitted, after solawless a resort to violence against the plan, to turn around decades later, andclaim legal entitlements under it.

“More than one of ‘the general principles of law’ acknowledged in Article38(1)(c) of the Statute of the International Court of Justice seem to forbid it.Such claimants do not come with ‘clean hands’ to seek equity; their handsindeed are mired by their lawlessly violent bid to destroy the very resolution[181] and plan from which they now seek equity. They may also be thoughtby their representations concerning these documents, to have led others toact to their own detriment, and thus to be debarred by their own conductfrom espousing, in pursuit of present expediencies, positions they formerlyso strongly denounced. They may also be thought to be in breach of thegeneral principle of good faith in two other respects.

“Their position resembles that of a party to a transaction who has unlawfullyrepudiated the transaction, and comes to court years later claiming thatselected provisions of it should be meticulously enforced against the wrongedparty. It also resembles that of a party who has by unlawful violence wilfullydestroyed the subject-matter that is ‘the fundamental basis’ on which consentrested, and now clamors to have the original terms enforced against the otherparty. These are grounds that reinforce the pithy view of U.S. Legal AdviserHerbert Hansell that the 1947 partition was never effectuated.

“… the Partition Resolution and Plan, since they were prevented by Arabrejection and armed aggression from entering into legal operation, could notthereafter carry any legal effects binding on Israel.”31


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31 Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The JohnsHopkins University Press, 1981, p. 65.


When armistice lines were finally drawn in the spring and summer of1949 under the auspices of the UN, they reflected ‘facts on the ground.’Resolution 181 had been tossed into the waste bin of history, along withall other plans of partition.


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5 Self-Defence

Article 51 – The Right to Self-Defence

Article 51 of the UN Charter clearly recognizes “the inherent right ofindividual or collective self-defence” by anyone. That is, the language ofArticle 51 does not identify or stipulate the kind of aggressor or aggressorsagainst whom this right of self-defence can be exercised … and certainlydoes not limit the right to self-defence to attacks by States!

ICJ’s attempt to qualify the use of self-defence under Article 51 asaggression committed by a ‘state’ only, is clearly an attempt to evadeinternational law.

The ICJ Bench ignored repeated acts of terrorism from ‘Palestine’ asemanating from non-State entities and therefore inadmissible to theissue of the security fence.

The ICJ’s opinion engages in some highly questionable interpretationsnot only of its own mandate, but also of the UN Charter’s article on theright to self-defence, or in the case of Israel, the lack of the right to self-defence. The worst of all statements concerns a fallacious interpretationof Article 51 of the UN Charter.

The ICJ writes in paragraph 139 of the opinion:

“Under the terms of Article 51 of the Charter of the United Nations:

‘Nothing in the present Charter shall impair the inherent right of individualor collective self-defence if an armed attack occurs against a Member of theUnited Nations, until the Security Council has taken measures necessary tomaintain international peace and security.’

S E L F - D E F E N C E

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“Article 51 of the Charter thus recognizes the existence of an inherent rightof self-defence in the case of armed attack by one State against another State.However, Israel does not claim that the attacks against it are imputable to aforeign State. … Consequently, the Court concludes that Article 51 of theCharter has no relevance in this case” [italics by author].

In addition to, and apart from, the provisions of Article 51, the ICJ alsoignores the fact that Palestinian warfare is “… strictly regulated by thecustoms and provisions of the law of armed conflict, referred to here asinternational humanitarian law (IHL).”

“The authoritative commentary of the ICRC to the Fourth GenevaConvention justifies applying the provision to non-state actors, saying [t]herecan be no drawbacks in this, since the Article in its reduced form, contraryto what might be thought, does not in any way limit the right [E.H., to self-defence] of a State to put down rebellion, nor does it increase in the slightestthe authority of the rebel [in this case the Palestinian Authority] party …”1

[italics by author].

The ICJ ignores the Palestinian Authority (PA) violations of theirassumed responsibility, such as the Oslo Accords, that required thePalestinians to abide by internationally recognized human rightsstandards. The Israeli Palestinian interim agreement of September 281995 stated:

“Israel and the Council [Palestinian Interim Self-Government Authority, i.e.,the elected Council,] hereinafter ‘the Council’ or ‘the Palestinian Council’shall exercise their powers and responsibilities pursuant to this Agreementwith due regard to internationally-accepted norms and principles of humanrights and the rule of law.”2


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1 See Legal Standards in Erased In A Moment: Suicide Bombing Attacks Against IsraeliCivilians, HRW, October 2002 at: http://www.hrw.org/reports/2002/isrl-pa/index.htm#TopOfPage. (11262)See also ICRC “…the right of a State to put down rebellion.” In “Article 3 - Conflicts notof an International Character” at: http://www.icrc.org/ihl.nsf/0/1919123e0d121fefc12563cd0041fc08?OpenDocument. (11368)

2 Under “Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,”Article XIX, Human Rights and the Rule of Law. September 28 1995. See:http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/THE%20ISRAELI-PALESTINIAN%20INTERIM%20AGREEMENT#art13.(10944)



Israel’s right to self-defence under Article 51 can not be more apparent according to both international humanitarian law and the ‘OsloAccord.’

Nothing can be more ludicrous than the ICJ conclusion that because“Israel does not claim that the attacks [by Palestinian terrorists] againstit are imputable to a foreign State,” it lost its right to act in self-defence.

It is worth noting that the UN and its organs have compromised eventhe Geneva Convention’s protocols, by selective politicization to bashIsrael.3 The High Contracting Parties never met to discuss Cambodia’skilling fields or the 800,000 Rwandans murdered in the course of threemonths in 1994.4 Israel is the only country in the Geneva Convention’s 54-year history to be the object of a country-specific denunciation.

The ICJ lacks the authority to amend or ‘interpret’Article 51.

There is no foundation for ‘adding restrictions,’ narrowly interpretingArticle 51’s meaning, or simply making changes to the UN Charter. TheICJ fails to reference Articles 108 and 109 of the UN Charter that setthe precedent rules for amending the Charter:

“Amendments to the present Charter shall come into force for all Members[E.H., and not a customized version for Israel] of the United Nations whenthey have been adopted by a vote of two thirds of the members of theGeneral Assembly and ratified in accordance with their respectiveconstitutional processes by two thirds of the Members of the United Nations,including all the permanent members of the Security Council.”


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3 For the text of the February 9 1999 resolution “Illegal Israeli actions in Occupied EastJerusalem and the rest of the Occupied Palestinian Territory,” see:http://www.mefacts.com/cache/html/un-resolutions/11124.htm. (11124)

4 See Associated Press report “More Than One Million Rwandans Killed in 1990’s,” TheNew York Times, February 16 2002 at http://www.mtholyoke.edu/acad/intrel/bush/rwandadeaths.htm. (10731)



It is rather strange that the ICJ, of all bodies, takes liberties to changewhat Article 51 clearly states. This ICJ also failed to review its own pastwritings on the subject of attempting to interpret UN Charter Articles.Elsewhere in the opinion, the ICJ quotes its 1950 ruling on South WestAfrica (Namibia) regarding Article 80 of the same UN Charter, sayingthat Articles of the UN Charter were carefully penned and should bestrictly read in a direct manner ‘as is’:

“The Court considered that if Article … had been intended to create anobligation … such intention would have been expressed in a direct manner”5

[italics by author].

The ICJ Bench zig-zags from strict construction to loose construction,coupled with biased interpretation, to deny Israel the fundamental rightto defend its citizens from terrorism.

Writing on the subject of the legal effect of Resolutions and Codes ofConduct of the United Nations, Schwebel, the former president of theInternational Court of Justice, notes:

“what the terms and the travaux (notes for the official record) of the Charterdo not support can scarcely be implemented.”6

Ironically, in December 2004, the UN High-level Panel on Threats,Challenges and Change, published the much anticipated report entitled“A more secure world: Our shared responsibility.” Paragraph 192 of thisreport states:

“We do not favour the rewriting or reinterpretation of Article 51” [Boldin the original].

The same is true of the International Court of Justice, an organ of theUnited Nations, which lacks the mandate to ‘amend’ Article 51.


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5 See International status of South-West Africa. Advisory Opinion of 11 July 1950 at:http://www.icj-cij.org/icjwww/idecisions/isummaries/isswasummary500711.htm. (10954)

6 Professor, Judge Stephen M. Schwebel, The Legal Effect of Resolutions and Codes of Conductof the United Nations in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of theICJ.



When Use of Force is Lawful

UN Charter Article 51 is not the only UN sanction of self-defence tobe disregarded by the ICJ.7 The Court also chooses to ignore a numberof highly relevant United Nations Resolutions, passed by the GeneralAssembly and the Security Council, addressing the legitimate and lawfuluse of force in self-defence by Member States.

For instance, the rationale behind General Assembly Resolution 3314 –“Definition of Aggression” – is highly relevant to the case at hand. Itstates:

“Convinced that the adoption of a definition of aggression ought to have theeffect of deterring a potential aggressor, would simplify the determination ofacts of aggression and the implementation of measures to suppress them andwould also facilitate the protection of the rights and lawful interests of, andthe rendering of assistance to, the victim.”8

The ICJ speaks repeatedly of the “inadmissibility of the acquisition ofterritory by war.” What does this phrase mean in the framework ofinternational law? The ICJ’s use of this important principle is selective,misplaced, misleading and totally out of context.

The Bench chooses to quote Article 2, paragraph 4, of the UN Charter,which says:

“All Members shall refrain in their international relations from the threat oruse of force against the territorial integrity or political independence of anyState, or in any other manner inconsistent with the Purposes of the UnitedNations.”


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7 Article 51 reads: “Nothing in the present Charter shall impair the inherent right ofindividual or collective self-defence if an armed attack occurs against a Member of theUnited Nations, until the Security Council has taken measures necessary to maintain inter-national peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any wayaffect the authority and responsibility of the Security Council under the present Charter totake at any time such action as it deems necessary in order to maintain or restore internationalpeace and security.” See: http://www.un.org/aboutun/charter/chapter7.htm. (10370)

8 See Appendix E. UN General Assembly Resolution 3314 (XXIX). http://middleeastfacts.org/content/book/18-aggression-nm-010504.doc. (10495)



But the Bench chooses to ignore Article 5, paragraph 3, of UN GAResolution 3314 which states:

“No territorial acquisition or special advantage resulting from aggression is orshall be recognized as lawful” [italics by author].

That is, the inadmissibility of the acquisition of territory by war cannotand should not be viewed as a blanket statement. Rather, it hinges onacquisition being the result of aggression. Arab countries acted aggressivelyagainst Israel in 1948 and 1967. Israel was not the aggressor in either the1948 War of Independence or in the 1967 Six-Day War.

In the same manner, the ICJ quotes selectively from the 1970 GeneralAssembly Resolution 2625 (“Declaration on Principles of InternationalLaw Concerning Friendly Relations and Co-operation Among States”).9

In paragraph 87 of the ICJ opinion, the Bench notes that Resolution2625:

“… emphasized that ‘No territorial acquisition resulting from the threat oruse of force shall be recognized as legal.’”

It hides from the reader that the same Resolution subsequently clarifies that:

“The territory of a State shall not be the object of military occupationresulting from the use of force in contravention of the provisions of theCharter” [italics by author].

The same Resolution continues:

“Nothing in the foregoing paragraphs shall be construed as enlarging ordiminishing in any way the scope of the provisions of the Charter concerningcases in which the use of force is lawful” [italics by author].

Schwebel explains that the principle of “acquisition of territory by war isinadmissible” must be read together with other principles:

“… namely, that no legal right shall spring from a wrong, and the Charterprinciple that the Members of the United Nations shall refrain in their


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9 See Appendix D. “Declaration on principles of international law concerning friendlyrelations and cooperation among states in accordance with the charter of the unitednations” at: http://www.un.org/documents/ga/res/25/ares25.htm. (11488)



international relations from the threat or use of force against the territorialintegrity or political independence of any State.”10

Simply stated, illegal Arab aggression against the territorial integrity andpolitical independence of Israel, cannot be rewarded.

Had the Charter forbidden use of force in any and all circumstances, itwould not need to use the words “resulting from.” The Resolutionwould have simply read: “The territory of a State shall not be the objectof military occupation by another State.” Period.

It is relevant at this juncture to recall again Lauterpacht’s explanation onthis important issue, a point also cited by Schwebel in his writing:

“… territorial change cannot properly take place as a result of the ‘unlawful’use of force. But to omit the word ‘unlawful’ is to change the substantivecontent of the rule and to turn an important safeguard of legal principle intoan aggressor’s charter. For if force can never be used to effect lawful territorychange, then, if territory has once changed hands as a result of the unlawfuluse of force, the illegitimacy of the position thus established is sterilized bythe prohibition upon the use of force to restore the lawful sovereign. Thiscannot be regarded as reasonable or correct.”11

That is, there are situations involving lawful use of force and there arelawful occupations in the course of repelling aggression. Article 51addresses the right to self-defence and the lawful use of force when onefaces an aggressor.

The Security Council is the only UN body authorized to label a MemberState (or non-State entity) an aggressor. In the Preamble of Resolution3314 (“Definition of Aggression”) it says:

“Recalling that the Security Council, in accordance with Article 39 of theCharter of the United Nations, shall determine the existence of any threat tothe peace, breach of the peace or act of aggression and shall make


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10 Professor, Judge Schwebel in What Weight to Conquest? in “Justice in International Law,”Cambridge University Press, 1994.



recommendations, or decide what measures shall be taken in accordance withArticles 41 and 42, to maintain or restore international peace and security.”12

Palestinian terrorism is an act of aggression.

The United Nations defines aggressor as an entity that was first to starthostility by using armed force. In this regard the Security Council hasnever labeled Israel an aggressor in its entire history.

General Assembly Resolution 3314, adopted unanimously in 1974,makes it abundantly clear that no group, including non-State entitiesand individuals, can expect to be shielded behind the ICJ’s narrow andwarped interpretation of Article 51 (the right to self-defence), whichsuggests that only aggression by “one State against another State” qualifyfor self-defence.

Article 3(a) of UN Resolution 3314 clarifies that the definition of a Statewhen defining aggressors must be loosely construed:

“… without prejudice to questions of recognition or to whether a State is amember of the United Nations.”13

This clause clearly covers aggression emanating from the PalestinianAuthority, an internationally recognized autonomous, national politicalentity established by international treaty – the Oslo Accords.14 Moreover,Article 3(g) cites specifically that this includes:

“… the sending by or on behalf of a State of armed hands, groups, irregularsor mercenaries, which carry out acts of armed force against another State ofsuch gravity as to amount to the acts listed above, or its substantialinvolvement therein.”


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12 See discussion in this critique, Chapter 8: “Attempting to Brand Israel the Aggressor.”13 UN General Assembly Resolution 3314 (XXIX) at: http://middleeastfacts.org/content/

book/18-aggression-nm-010504.doc (10495)14 See: Israel-PLO Agreement: Oslo, 1993 [9/13/1993] Ref #11318. (11318) and Oslo II

Interim Agreement - Washington, D.C., September 28 1995 [9/28/1995] Ref #10944.(10944)



Furthermore, in Article 4, Resolution 3314 notes that “… the actsenumerated above are not exhaustive” and declares they can be furtherenumerated by the Security Council. Palestinian terrorist organizations,with headquarters and support in places such as Gaza, Jenin, Lebanon,Iran and Syria, using areas under the civil and security responsibility ofthe Palestinian Authority as organizational and staging areas to committerrorist acts, clearly fall within the confines of this Resolution.

Self-defence should be used against “all perpetrators”of terrorism “whomever” they are.

UN General Assembly and Security Council Resolutions,15 includingthe International Convention for the Suppression of Terrorist Bombings,16

call for specific actions to be taken by all States and underscore repeat-edly that terrorism must be fought by all parties, by all means, at alltimes, by whomever and against all perpetrators. None of these require-ments are cited by the ICJ, neither in its discussion of Article 51 and theright of Israel to self-defence, nor in any other similar context within theICJ’s opinion.

The ICJ suggests: Israelis have to face deadly acts ofviolence, and lack the right for self-defence.

In paragraph 141 of the ICJ Opinion, the Court concludes that,

“The fact remains that Israel has to face numerous indiscriminate and deadlyacts of violence against its civilian population” [italics the author].

The Court’s use of the word ‘has’ rather than ‘faces’ [deadly acts], has thering of a ‘court order.’ The Court doesn’t condemn the attacks; insteadit ‘sentences’ Israel to a form of cruel and unusual punishment.


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15 See Appendix B.16 Adopted without a vote, December 15 1997. See: http://www.un.org/ga/documents/

gares52/res52164.htm. (10899)



The Court recognizes Israel’s predicaments, while being careful not touse the “T” word (terrorism) or bring itself to classify Palestinian’s actsas “crimes against humanity,”17 for to do so would imply that Israel’splight comes under the umbrella of Resolutions and InternationalConventions safeguarding universal human rights.

The Court that in paragraph 141 suggests that Israel “has the right, andindeed the duty, to respond in order to protect the life of its citizens” isthe same Court that in paragraph 142 leaves Israel powerless; denies itthe right for self-defence and rules against building a non-lethal securitybarrier that saves lives, in favor of Palestinian inconvenience andPalestinian terrorism.


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17 See “Element of Crimes” at the Rome Statue of the International Criminal Court, at http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/elements(e).pdf (11456)



6 Terrorism

The International Court of Justice fails to identify Palestinian terrorism,the root cause of the construction of the security barrier, and what onemay and may not do to combat it.

UN-sponsored International Conventions, Security Council Resolu-tions and Directives, including the Report of the Secretary-Generalprepared pursuant to General Assembly Resolution ES-10/13, are allignored by the ICJ.1

The ICJ cites UN Document A/ES-10/248 – the report of the SecretaryGeneral on the security fence – as a key document and source of infor-mation for its opinion. Yet, the ICJ overlooks entirely the points in theSecretary-General’s Report2 that admits the causal relationship between

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1 Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13, October 21 2003, paragraph C, 1. (11317)

2 UN Document A/ES-10/248, November 24 2003, “Report of the Secretary-Generalprepared pursuant to General Assembly resolution ES-10/13,” November 24 2003, at:http://domino.un.org/unispal.nsf/0/a5a017029c05606b85256dec00626057?OpenDocument. (10575)



terrorism and the security barrier. In Section C (Route of the Barrier) (4)of his report, the Secretary-General cites:

“… After a sharp rise in Palestinian terror attacks in the spring of 2002, the[Israeli] Cabinet approved Government Decision 64/B on 14 April 2002,which called for construction of 80 kilometers of the Barrier in the threeareas of the West Bank.”

Not only does the report label the Palestinian actions as terror, but it alsoclearly establishes, in its own words, the cause for building a securitybarrier. The ICJ completely ignores this fact; at no point is it addressedin the ICJ’s opinion.

In December 1997, the United Nations adopted Resolution 52/164 –the International Convention for the Suppression of Terrorist Bombings 3 –a contribution to international law that establishes rules of jurisdictionin the prosecution of terrorists.

The UN legislation clearly defines terrorism and ‘who is a terrorist,’declaring, for the first time, that:

“… the States Members of the United Nations solemnly reaffirm theirunequivocal condemnation of all acts, methods and practices of terrorism ascriminal and unjustifiable, wherever and by whomever committed” [italics byauthor].

This text is clear: regarding any act of terrorism, the ends do not justifythe means.

Article 2 of the Convention defines a terrorist as:

“Any person [who] unlawfully and intentionally delivers, places, discharges ordetonates an explosive or other lethal device in, into or against a place of


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3 UN General Assembly, International Convention for the Suppression of Terrorist Bombings,Adopted without a vote, 15 December 1997. See: http://www.un.org/ga/documents/gares52/res52164.htm. (10899)



public use, a State or government facility, a public transportation system oran infrastructure facility … with the intent to cause death or serious bodilyinjury … or with the intent to cause extensive destruction of such a place,facility or system, where such destruction results in or is likely to result inmajor economic loss.”

It underscores in 2 a-c that this includes:

“… accomplices, organizers and directors and other persons who in any otherway contribute to the commission of such acts.”

There is no escape clause in this piece of international law that exempts“struggles for self-determination” from anti-terrorism resolutions. Infact, the International Convention for the Suppression of Terrorist Bombingsclarifies in Article 11 that:

“None of the offences set forth in article 2 shall be regarded … as a politicaloffence or as an offence connected with a political offence or as an offenceinspired by political motives.”

The ICJ skirts this issue, choosing to rule favorably on the “applicabili-ty of human rights instruments outside national territory … in theOccupied Palestinian Territory” – quoting time and again other conven-tions and covenants. These agreements include the InternationalCovenant on Economic, Social and Cultural Rights, the Convention on theRights of the Child and the International Covenant on Civil and PoliticalRights. All are used as evidence (without a single reference to particularsor law), to condemn Israel’s abrogation of humanitarian law in buildingthe Barrier against “... numerous indiscriminate and deadly acts ofviolence,”4 but the ICJ doesn’t so much as mention the InternationalConvention for the Suppression of Terrorist Bombing. In fact, the term‘suicide bombers’ does not appear even once, nor is the “T” word usedin the wording of the Opinion.5

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4 See Appendix I. ICJ Advisory Opinion, 9 July 2004, paragraphs 141-142.5 “Terrorism” appears only five times in the document, cited in brief quotes from the Israeli

brief. In the actual opinion, in the name of the ICJ, the word “terrorism” doesn’t appeareven once.


If General Assembly Resolution 33146 and the International Conventionfor the Suppression of Terrorist Bombings do not make their denunciationof terrorism explicitly clear, resolutions by the Security Council –Resolution 12697 adopted in the wake of the first attack on the WorldTrade Center in 1999 and other resolutions adopted in the wake of theSeptember 11 2001 terrorist attack on the United States by a non-Stateterrorist organization – do.

In Point 4 of Security Council Resolution 1269, passed in October 1999(after the first attack on the World Trade Center), the Security Councilcalls upon every UN member and non-member:

“… to take, inter alia, in the context of such cooperation and coordination,appropriate steps to:

“cooperate with each other, particularly through bilateral and multilateralagreements and arrangements, to prevent and suppress terrorist acts, protecttheir nationals and other persons against terrorist attacks and bring to justicethe perpetrators of such acts.”

In essence, the Security Council expects every Member State to carry outthis and other steps enumerated in the resolution.

Resolutions 1368,8 13739 (September 2001) and Resolution 137710

(November 2001) leave no room to question Israel’s right to defend itselfagainst systematic and sustained Palestinian terrorist attacks launchedsince September 2000 – an onslaught per capita, equivalent to 17September 11th attacks.11


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6 UN General Assembly Resolution 3314 (XXIX). See: http://middleeastfacts.org/con-tent/book/18-aggression-nm-010504.doc. (10495)

7 UN Security Council, Resolution 1269 Adopted by the Security Council at its 4053rdmeeting on October 19 1999. See: http://www.un.int/usa/sres1269.htm. (11375)

8 UN Security Council Resolution 1368 (2001). See: http://www.mefacts.com/cache/pdf/un-resolutions/10574.pdf. (10574)

9 UN Security Council 1373 (2001) September 28 2001. (10838)10 UN Security Council Resolution 1377 (2001) November 12 2001. (10837)11 Between September 1993 (the signing of the Oslo Accords) and February 2003 (prior to

completion of the first leg of the fence) more than 1,004 Israelis lost their lives toPalestinian terrorists.



With regard to terrorism, Resolution 1368 clarifies and 1373 reconfirmsin a broader form that the Security Council:

“Reaffirms the inherent right of individual or collective self-defence asrecognized by the Charter of the United Nations as reiterated in Resolution1368 (2001),

“Reaffirming the need to combat by all means, in accordance with theCharter of the United Nations, threats to international peace and securitycaused by terrorist acts.”

The UN term “by all means” clearly includes a passive, non-lethal physicalbarrier to impede the movement of such perpetrators, in addition to moreforceful responses.

Resolution 1377, passed two months later:

“Declares that acts of international terrorism constitute one of the mostserious threats to international peace and security in the twenty-first century,

“Reaffirms its unequivocal condemnation of all acts, methods and practicesof terrorism as criminal and unjustifiable, regardless of their motivation, in alltheir forms and manifestations, wherever and by whomever committed” [italicsby author].

Terrorist attacks that blow up and destroy public buses, religiouscelebrations such as a Passover seder and bat mitzvah, young people atcafes and discos, families at supermarkets and restaurants, and thatmurder youth at boarding schools, school outings, and families in theirhomes and on the road, clearly fall within the confines of this definition.

The nature of Palestinian terrorism is public knowledge. Yet, theInternational Court of Justice claims in paragraphs 55-57:

“According to Israel, if the Court decided to give the requested opinion, itwould be forced to speculate about essential facts and make assumptionsabout arguments of law. More specifically, Israel has argued that the Courtcould not rule on the legal consequences of the construction of the wall without enquiring, first, into the nature and scope of the security threatto which the wall is intended to respond and the effectiveness of thatresponse … ”

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Nevertheless, in paragraph 57 of the opinion, the ICJ claims it hasample information:

“… the Court has at its disposal the report of the Secretary-General,12 as wellas a voluminous dossier submitted by him to the Court. … The Court notesin particular that Israel’s Written Statement, although limited to issues ofjurisdiction and judicial propriety, contained observations on other matters,including Israel’s concerns in terms of security, and was accompanied bycorresponding annexes; many other documents issued by the IsraeliGovernment on those matters are in the public domain.”

After all has been said and done,13 how is it that nowhere in the opiniondoes the ICJ weigh Israel’s security threat or even mention terrorism asa factor in the case? The ICJ did not even have to depend on Israelisources. There is, for instance, a well-documented 170-page HumanRights Watch (HRW) report on suicide bombings against Israelis sinceSeptember 2000 – Erased in a Moment: Suicide Bombing Attacks AgainstIsrael Civilians – available ‘in the public domain’ at the click of acomputer mouse. The report, prepared by an international human rightsmonitoring organization, concluded: “The scale and systematic natureof these [E.H., terror] attacks in 2001 and 2002 meet the definition ofa crime against humanity.”

Moreover, the Human Rights Watch report, which examines in a specialsection the justifications given by terrorists for their actions under theright to self-determination, places responsibility for terrorist acts directlyat the Palestinian Authority’s door.


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12 The report includes the following statements: “The Government of Israel has since 1996considered plans to halt infiltration into Israel from the central and northern West Bank,with the first Cabinet approval of such a plan in July 2001. After a sharp rise in Palestinianterror attacks in the spring of 2002 …” and “I acknowledge and recognize Israel’s right andduty to protect its people against terrorist attacks.” See: Report of the Secretary-Generalprepared pursuant to GA Res. ES-10/13. (10940)

13 In short, the PA is competent to rule, but if it fails, Israel is to blame for not providing therelevant material … which the Court in any case rules is immaterial.



Security Council Resolution 1368, passed the day after the September11th attack, clearly specified who was accountable for such a terrorist actand called for:

“… bring[ing] to justice the perpetrators, organizers and sponsors of theseterrorist attacks and stresses that those responsible for aiding, supporting orharbouring the perpetrators, organizers and sponsors of these acts will be heldaccountable” [italics by author].

Security Council Resolution 1456 – passed in January 2003 – furtherclarified:

“… any acts of terrorism are criminal and unjustifiable, regardless of theirmotivation, whenever and by whomsoever committed and are to beunequivocally condemned, especially when they indiscriminately target orinjure civilians”14 [italics by author].

Again, the International Court of Justice sees no relevance in thedefinition of terrorism and culpability set forth in Resolution 1456,despite the fact that Israel has been the target of aggression with 80percent of the Israelis killed being non-combatants, with women andgirls accounting for 31 percent of the fatal casualties,15 including 51American citizens and a score of foreign laborers.16

The ICJ quotes from a variety of international conventions devoted towartime situations, including the Hague and Geneva Conventions. Is itreasonable that the ICJ is unaware of the Rome Statute in force since2002 that is clearly posted on the UN International Law website?17

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14 UN Security Council Resolution 1456 (2003), [1/20/2003]. (10843)15 For a summary of the study see Don Radlauer, “The al-Aqsa Intifada – An Engineered

Tragedy,” January 7 2003 at: http://www.ict.org.il/articles/articledet.cfm?articleid=440.For the full study, see http://www.ict.org.il/articles/articledet.cfm?articleid=439.

16 “Shin Bet report: 1,017 Israelis killed in intifada,” Haaretz, September 27 2004. Thisreport also cites 70% of the fatalities (1,017 persons) and 82% of the wounded (5,598persons) were civilians during four years of violence (September 2000-September 2004).

17 See http://www.un.org/law/icc/. (11130)This document uses extensive links via the Internet. If you experience a broken link, please note the 5 digit number(xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com.


What does the Rome Statute say? In Section IV (“Legal Standards”) inthe Human Rights Watch investigation of suicide bombings, the RomeStatute and the Draft Code Against the Peace and Security of Mankinddrawn up by the International Law Commission and often quoted as aguide or yardstick in legal proceedings, are discussed at length.18 TheHRW notes:

“The notion of ‘crimes against humanity’ refers to acts that, by their scale ornature, outrage the conscience of humankind. Crimes against humanity werefirst codified in the charter of the Nuremberg Tribunal of 1945. Since then,the concept has been incorporated into a number of international treaties,including the Rome Statute of the International Criminal Court (ICC).Although definitions of crimes against humanity differ slightly from treaty totreaty, all definitions provide that the deliberate, widespread, or systematickilling of civilians by an organization or government is a crime againsthumanity. Unlike war crimes, crimes against humanity may be committed intimes of peace or in periods of unrest that do not rise to the level of an armedconflict.”19

The most recent definition of crimes against humanity is contained inthe Rome Statute of the ICC, which entered into force on July 1 2002.

“The statute, in Article 7, defines crimes against humanity as the ‘participationin and knowledge of a widespread or systematic attack against a civilianpopulation,’ and ‘the multiple commission of [such] acts ... against anycivilian population, pursuant to or in furtherance of a State or organizationalpolicy to commit such attack.’ The statute’s introduction defines ‘policy tocommit such attack’ to mean that the state or organization actively promotedor encouraged such attacks against a civilian population. The elements of the‘crime against humanity of murder’ require that (1) ‘the perpetrator killedone or more persons,’ (2) ‘[t]he conduct was committed as part ofa widespread or systematic attack directed against a civilian population,’ and(3) ‘[t]he perpetrator knew that the conduct was part of, or intended the


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18 See Section IV, at: http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-04.htm#P564_114276. (11455) See also “Element of Crimes” at the Rome Statute of theInternational Criminal Court, at: http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/elements(e).pdf. (11456)

19 See Human Rights Watch at http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-04.htm#P589_123822#P589_123822. (11455)



conduct to be part of, a widespread or systematic attack against a civilianpopulation.’”20

It is noteworthy that the Rome Statute addresses both the character ofthe act (deliberate “widespread or systematic” killing), and the nature ofthe perpetrator (a “State” or “organization”), and leaves no loopholes fornon-State entities to escape culpability. Yet, the Rome Statute – an inte-gral part of international law – is patently ignored by the InternationalCourt of Justice.21

The ICJ ignores relevant bilateral treaties, including theOslo Accords.

In paragraph 77 of the ICJ opinion, ten years of Palestinian autonomymarked by broken promises to recognize Israel by abolishing anti-Israelclauses in the Palestinian National Covenant and to replace denunciationof terrorism with negotiation, is reduced by the ICJ to one sentence:

“… a number of agreements have been signed since 1993 between Israel andthe Palestine Liberation Organization imposing various obligations on eachparty.”

The ICJ then takes liberties with the content of the Oslo Accords,claiming erroneously:

“Those agreements inter alia required Israel to transfer to Palestinianauthorities certain powers and responsibilities exercised in the OccupiedPalestinian Territory by its military authorities and civil administration.”

In fact, this is a doctored interpretation: had the members of the ICJread the Accords, the Bench would have found that Israel onlyrecognized the PLO as the representative of the Palestinian people in theexchange of letters between both sides:

“In response to your [Arafat] letter of September 9 1993, I [Yitzhak Rabin,Prime Minister of Israel] wish to inform you that, in light of the PLO

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20 Ibid.21 See Article 7 (1) (a) Crime against humanity of extermination at: http://www.rk19-biele-

feld-mitte.de/info/Recht/United_Nations/Strafgerichtshof/Elements_of_Crime/Article_7.htm#1. (11456)



commitments included in your letter, the Government of Israel has decided torecognize the PLO as the representative of the Palestinian people and commencenegotiations with the PLO within the Middle East peace process.”22

Israel never recognized the claim that the autonomy to be grantedPalestinians pertained to ‘Occupied Palestinian Territories.’ In fact, at nopoint in the Accords is the West Bank or Gaza labelled ‘occupiedterritory.’ The ICJ simply fabricated this and lamely concludes:

“Such transfers have taken place, but, as a result of subsequent events, theyremained partial and limited.”

This abridged sentence sanitizes the history of the Oslo peace process,and doesn’t so much as hint at what “subsequent events” disrupted thepeace process – events that have taken the lives of 1366 Israeli victims ofterrorism, mostly civilians.23 Instead, the ICJ claims the only regime isIsraeli!

“… Israel exercises control in the Occupied Palestinian Territory and that, asIsrael itself states, the threat which it regards as justifying the construction ofthe wall originates within, and not outside, that territory.”

In short, a corrupt logic holds that Israel is solely in charge in a said area,but it is forbidden to take any effective actions in that given area.

The ICJ blithely argues with no reference to international law:

“The situation is thus different from that contemplated by Security Councilresolutions 1368 (2001) and 1373 (2001), and therefore Israel could not inany event invoke those resolutions in support of its claim to be exercising aright of self-defence. Consequently, the Court concludes that Article 51 ofthe Charter has no relevance in this case.”


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22 PLO-Israel Letters of Mutual Recognition. Exchange of Letters between PLO ChairmanYasser Arafat & Israeli Prime Minister Yitzhak Rabin. September 9 1993. See:http://www.palestine-un.org/peace/p_b.html. (10420)

23 As of December 3 2004, and since September 1993, 1,366 Jews have been murdered byPalestinian’s terror. For a an updated listing by name see: http://www.masada2000.org/oslo.html.



The ICJ’s denial of Israel’s right to act under Resolution 1373 isparticularly grave. Resolution 137324 was adopted by the SecurityCouncil under Chapter VII of the UN Charter (“Threats to Peace,Breaches of the Peace and Acts of Aggression”) that invests the SecurityCouncil with the power to issue stringent resolutions requiring allnations to comply with the terms set forth in Resolution 1373, citing

“the need to combat by all means, in accordance with the Charter of theUnited Nations, threats to international peace and security caused byterrorist acts” [italics by author].

The ICJ has no authority and no power over the Security Council toalter the resolution or exclude Israel, a Member State of the UN, fromits rights and obligations under Resolution 1373.

The ICJ’s position pretends that a decade of Palestinian autonomy neverexisted and Palestinians have no margin of control whatsoever over theirlives. The threats from suicide bombers and other terrorist acts aremagically transformed into an ‘internal problem,’ so that the SecurityCouncil Resolutions passed after September 11th, which allow countriesto compromise the sovereignty of other polities to combat terrorism,become inapplicable. Elsewhere in the opinion the ICJ denies Israel theright to take anti-terrorism measures anywhere beyond the Green Linebecause the same territory ‘belongs’ to an entity called ‘Palestine.’

Even the British judge on the Bench, Rosalyn Higgins, felt compelled tonote in a separate opinion that:

“Palestine cannot be sufficiently an international entity to be invited to theseproceedings, and to benefit from humanitarian law, but not sufficiently an inter-national entity for the prohibition of armed attack on others to be applicable.”25

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24 UN Security Council Resolution 1373 (2001). S/RES/1373 (2001). Adopted by theSecurity Council at its 4385th meeting, on 28 September 2001. See: http://middleeastfacts. org/content/UN-Documents/PDF/SC-res-1373-sep-28-2001.pdf. (10838)

25 See Judge Higgins at: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.



Yet, this and numerous other reservations did not prevent Higgins fromvoting in favor of adopting the opinion as written.

As far as the ICJ is concerned, Palestinian society lacks any semblance ofsocial organization or self-rule, either on a local or national level, thatcan be held accountable for terrorism. Yet, at the same time, this sameCourt holds that Palestinians are such a sustainable entity as to deserveimmediate self-determination.

The ICJ patently ignores the other clauses in Oslo II26 which gives thePalestinian Authority full responsibility for Gaza, Jericho and sevenmajor Palestinian cities on the West Bank, including internal securityand public order, a responsibility it abrogated by using control of thecivil machinery in 450 towns throughout the West Bank to incite thepopulation, including children. It also included turning denselypopulated areas under full Palestinian control, such as Ramallah andJenin, into bomb-making factories and staging areas for suicidebombers.

Human Rights Watch – a non-governmental organization (NGO) – is farmore thorough in its report on suicide bombings. It doesn’t gloss overPalestinian commitments (and complicity) or hide behind thePalestinian Authority’s non-state status. It has the courage to say:

“Although it is not a sovereign state, the Palestinian Authority has explicitsecurity and legal obligations set out in the Oslo Accords, an umbrella termfor the series of agreements negotiated between the government of Israel andthe PLO from 1993 to 1996. The PA obligations to maintain security andpublic order were set out in articles XII to XV of the 1995 InterimAgreement on the West Bank and Gaza Strip. These responsibilities wereelaborated further in Annex I of the interim agreement, which specifies thatthe PA will bring to justice those accused of perpetrating attacks against


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26 The Israeli-Palestinian Interim Agreement on the West Bank And the Gaza Strip,Washington, D.C. September 28 1995. Full text see: http://www.mefacts.com/cache/html/oslo/10944.htm. (10944)



Israeli civilians. According to article II (3)(c) of the annex, the PA will‘apprehend, investigate and prosecute perpetrators and all other personsdirectly or indirectly involved in acts of terrorism, violence andincitement.’”27

These clauses in a landmark international accord, as well as otheryardsticks examined by Human Rights Watch in their study and foundto be relevant, are of no interest to the International Court of Justice.

The ICJ bases its ‘conclusion’ on General Assembly Resolution 58/163that “reaffirms the right of the Palestinian people … to their independentState of Palestine.”28 The General Assembly, of course, has noauthorization to ‘hand out’ polities any more than the ICJ has the rightto give this bogus right a legal ‘stamp of approval’ because neither bodyhas actual legislative or executive powers.

Under the Law of Nations, rights go hand-in-hand with responsibilities.Entitlement is irrevocably tied to accountability. The entire opinionpenned by the International Court of Justice speaks time and again ofPalestinian rights, but not once about Palestinian responsibilities. IfPalestinians are unable to behave in a manner in keeping with the mostfundamental principles of the law of nations – attacking their neighborsas opposed to peaceful negotiation of differences – then surely Israel hasthe right to defend such an onslaught of its national security. But, alas,the entire issue of terrorism is considered immaterial to the securitybarrier question, which the ICJ brands a political ploy that merely grabsPalestinian land and abridges Palestinian rights.

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27 HUMAN RIGHTS WATCH. Erased In A Moment: Suicide Bombing Attacks Against IsraeliCivilians, October 2002. Obligations of the Palestinian Authority and Armed PalestinianGroups, at: http://www.hrw.org/reports/2002/isrl-pa/ISRAELPA1002-4.htm#TopOfPage.(11262)

28 UN General Assembly - 58/163. A/RES/58/163. 77th plenary meeting. December 222003. The right of the Palestinian people to self-determination. See:http://domino.un.org/UNISPAL.NSF/0/e5eaf52d1c576d0785256e6d0055b152?OpenDocument. (11319)



29 UN General Assembly Fifty-Ninth Session, 2 December 2004. (11550)



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Report of the UN High-level Panel on Threats,Challenges and Change.

On December 2 2004, the UN Secretary-General released a report entitledA more secure world: Our shared responsibility.29

This report, more than one year in the making, acknowledges the globalthreats of terrorism, and clearly contradicts the ICJ’s Advisory Opinion onsome of the core issues regarding terrorism and self-defence, stating that the:

“biggest security threats we face now, and in the decades ahead, go far beyondStates waging aggressive war. They extend to … terrorism. … The threats arefrom non-State actors [E.H., such as the Palestinians] as well as States [E.H.,such as Syria, Saudi Arabia, Iran], and to human security as well as Statesecurity” [italics by author].

The report continues to challenge the Court assertion that Resolution1373 is not applicable to Israel [E.H., as the court did without referenceto law, or other supportive source] by stating:

“Security Council resolution 1373 (2001) imposed uniform, mandatorycounter-terrorist obligations on all States …” [italics by author].

It proceeds to explain that the response to the use of force by a non-Statehas been inadequate:

“159. The norms governing the use of force by non-State actors have notkept pace with those pertaining to States. … Legally, virtually all forms ofterrorism are prohibited by one of 12 international counter-terrorismconventions, international customary law, the Geneva Conventions or theRome Statutes. Legal scholars know this. … The United Nations mustachieve the same degree of normative strength concerning non-State use offorce as it has concerning State use of force.” And that “… there is nothingin the fact of occupation that justifies the targeting and killing of civilians[italics by author].

“161. … Attacks that specifically target innocent civilians and non-combatants must be condemned clearly and unequivocally by all.”


7ICJ Attempts to Brand Israel the Aggressor

In 1974, the United Nations General Assembly adopted a definition of“aggression” in the context of establishing international peace when itapproved Resolution 3314.1 The resolution reaffirms the principles ofthe UN Charter and the Declaration on Principles of International Law,which states that “… war of aggression constitutes a crime against thepeace, for which there is responsibility under international law.”

Using provocative words such as “belligerents,” “belligerency,” and “hos-tile,” the ICJ’s opinion attempts to convey the impression that Israel isan “aggressor” who deserves no rights.2

When applying Resolution 3314 to major battles between Israel and theArab states in 1948, 1956, 1967, 1973 and the continuing fight of self-defence against Palestinian Arab terrorism, the UN’s 1974 definition ofaggression clearly and unequivocally would label the Arab states and the

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1 See Appendix E. UN Resolution 3314 – Defining Aggression.2 See Appendix I. ICJ Advisory Opinion, 9 July 2004.


Palestinian Arabs as the aggressors in both their direct and indirect actsof hostility against Israel.3

The following demonstrates just who is the aggressor in the Arab-Israeliconflict under international laws:

1. Article 1 defines “aggression” as the use of armed force against thesovereignty, territorial integrity or political independence of a State. An“Explanatory note:” follows to explains that “In this Definition the term‘State’”:

“(a) is used without prejudice to questions of recognition or to whethera State is a member of the United Nations;” which means to say that actsof aggression applies [apply] also to “people,” State [refers ]not [only to]members of the UN, or other non-recognized States. This note is givento understand that aggression can apply to any aggressor, whether anacknowledged state or an organization.

2. Article 2, 25 years after the fact, establishes that the Arab states thatattacked the newly declared State of Israel in 1948 (known as Israel’s Warof Independence) were all aggressors.

Furthermore, during the 1967 Six-Day War, Jordan, who joined Egyptand initiated ‘the first use of armed forces’ against Israel, was clearly anaggressor.4


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3 Professor, Judge Stephen M. Schwebel, What Weight to Conquest? in Justice in InternationalLaw, Cambridge University Press, 1994. “As between Israel, acting defensively in 1948 and1967, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, onthe other, Israel has better title in the territory of what was Palestine, including the wholeof Jerusalem.”

4 “In response to the Israeli attack [on Egypt], Jordanian forces launched an offensive intoIsrael, but were soon driven back as the Israeli forces counterattacked into the West Bankand Arab East Jerusalem.” From the official website of Jordan at:http://www.mefacts.com/cache/html/jordan/10364.htm. (10364)



3. Article 3 (c) – In both 1956 and 1967, Egypt blockaded the Strait ofTiran, preventing access to Israel’s southern port of Eilat, a hostile actionthat led to the Sinai Campaign in 19565 and to the 1967 Six-Day War.As defined by the UN’s 1974 resolution, Egypt indisputably committedan act of aggression.

Article 3 (f ) – Lebanon’s acquiescence in allowing Syrian armed forces touse Lebanon as a platform to wage war against Israel by supportingHezbollah’s terrorist attacks, clearly puts Lebanon in the category ofaggressor.

Article 3 (g) – Under this Article, Lebanon, Syria and Iran are clearlyaggressors. By allowing Hezbollah to freely launch attacks from itsterritory, Lebanon permits armed aggression against Israel. Syria andIran are aggressors as they are clearly Hezbollah’s greatest supporters inthe region.

Article 6 – Applies when use of force is exercised under the UN Charter’sdefinition of self-defence and in cases in which the use of force is lawful.6

Israel’s enemies unsuccessful in branding Israel theaggressor.

All UN Draft Resolutions attempting to brand Israel as aggressor orillegal occupier as a result of the 1967 Six-Day War, were all defeated byeither the UN General Assembly or the Security Council:

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5 The “Time 100” historical review of the Sinai Campaign, describes the principle by whichIsrael will agree to withdrawal from the Sinai Peninsula: “France’s Premier Guy MoDd andForeign Minister Christian Pineau arrived in Washington … Pineau submitted to Dulles adraft resolution whereby 1) Israel would withdraw unconditionally, and 2) Israel’s rightswould be reserved under the Charter’s self-defence clause if Egypt should go back to raidsand blockages against her.” See: http://www.time.com/time/time100/leaders/profile/bengurion_related5.html. (11541)

6 “Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in anyway the scope of the provisions of the Charter concerning cases in which the use of force islawful.” [italics by author]. See Appendix D. UN Resolution 2625.



A/L.519,7 19 June 1967, submitted by: the Union of Soviet SocialistRepublics, “Israel, in gross violation of the Charter of the United Nations andthe universally accepted principles of international law, has committed apremeditated and previously prepared aggression against the United ArabRepublic, Syria and Jordan.”

A/L.521,8 26 June 1967, submitted by: Albania “Resolutely condemns theGovernment of Israel for its armed aggression against the United ArabRepublic, the Syrian Arab Republic and Jordan, and for the continuance ofthe aggression by keeping under its occupation parts of the territory of thesecountries.”

A/L.522/REV.3*,9 3 July 1967, submitted by: Afghanistan, Burundi,Cambodia, Ceylon, Congo (Brazzaville), Cyprus, Guinea, India, Indonesia,Malaysia, Mali, Pakistan, Senegal, Somalia, United Republic of Tanzania,Yugoslavia and Zambia. “Calls upon Israel to withdraw immediately all itsforces to the positions they held prior to 5 June 1967.”

A/L.523/Rev.1,10 4 July 1967, submitted by: Argentina, Barbados, Bolivia,Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, ElSalvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua,Panama, Paraguay, Trinidad and Tobago and Venezuela. “Israel to withdrawall its forces from all the territories occupied by it as a result of the recentconflict.”

In short, Israel did not violate the provisions of the UN Charter, is notan aggressor, and is not required to withdraw from all territories.


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7 Union of Soviet Socialist Republics: draft resolution, A/L.519, June 19 1967, DOCUMENT A/L.519 at: http://domino.un.org/unispal.nsf/0/2795fff6b58b212c052566cd006e0900?OpenDocument. (10919)

8 Draft Resolution A/L. 521, by Albania at the Emergency Session of the General Assembly-June 26 1967, see: http://www.mefacts.com/cache/html/un-resolutions/10921.htm.(10921)

9 Document A/L.522/REV.3*, July 3 1967, Afghanistan, Burundi, Cambodia, Ceylon,Congo (Brazzaville), Cyprus, Guinea, India, Indonesia, Malaysia, Mali, Pakistan, Senegal,Somalia, United Republic of Tanzania, Yugoslavia and Zambia: Revised draft resolution.(10918)

10 A/L.523/Rev.1, July 4 1967, Fifth emergency special session Agenda item 5. Argentina,Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, ElSalvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay,Trinidad and Tobago and Venezuela: revised draft resolution. See:http://domino.un.org/UNISPAL.NSF/0/510ef41fac855100052566cd00750ca4?OpenDocument. (10920)



8 UN Security Council Resolutions 242 and 338

United Nations Security Council Resolution 242 was adopted unani-mously by the UN Security Council in the aftermath of the 1967 Six-Day War. The resolution calls for a solution to the Arab-Israeli conflictbased in principle on states having the right to “just and lasting peace”within “secure and recognized boundaries.”1

Resolution 242 and 338 never branded Israel as an “unlawful occupier”or an “aggressor” and never called on Israel to withdraw from all the“territories.” The wording of the resolutions clearly reflect the con-tention that none of the territories were occupied land taken by force inan unjust war.

In contrast, the International Court of Justice repeatedly reminds readersof the “… illegality of territorial acquisition resulting from the threat oruse of force,” all out of context. The Court misleads readers by ignoringArab aggression and concealing “the provisions of the Charter concern-ing cases in which the use of force is lawful,”2 as was the case of the 1967Six-Day War.

The minutes of the six month ‘debate’ over the wording of Resolution242, as noted in the close of Chapter 7, show that draft resolutionproposals that speak of “occupied territories,” “aggression” and whichcalled on Israel to “withdraw immediately all its forces to the positionsthey held prior to 5 June 1967,” were all defeated.

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1 See Appendix C. UN Resolutions 242, 338, 1515.2 See Appendix D. UN Resolution 2625.


Professor Eugene V. Rostow, a drafter of UN Security CouncilResolution 242 and an international law expert, went on record in 1991to make this clear:

“Resolution 242, which as Undersecretary of State of Political Affairsbetween 1966 and 1969, I helped to produce, calls on the parties to makepeace and allows Israel to administer the territories it occupied in 1967 until ‘ajust and lasting peace in the Middle East’ is achieved. … Speaker afterspeaker made it explicit that Israel was not to be forced back to the ‘fragile’and ‘vulnerable’ Armistice Demarcation Lines, but should retire once peacewas made to what Resolution 242 called ‘secure and recognized’ boundaries,agreed upon by the parties”3 [italics by author].

Former British Ambassador to the UN Lord Caradon, the principalauthor of the Resolution 242 draft, indicated the same in 1974:

“It would have been wrong to demand that Israel return to its positions of 4June 1967. … That’s why we didn’t demand that the Israelis return to themand I think we were right not to.”4

Arthur J. Goldberg,5 the U.S. Ambassador to the UN in 1967 and a keydraftee of Resolution 242, stated:

“The notable omissions in language used to refer to withdrawal are the wordsthe, all, and the June 5, 1967, lines. I refer to the English text of the resolution.The French and Soviet texts differ from the English in this respect, but theEnglish text was voted on by the Security Council, and thus it isdeterminative. In other words, there is lacking a declaration requiring Israelto withdraw from the (or all the) territories occupied by it on and after June 5, 1967. Instead, the resolution stipulates withdrawal from occupied


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3 Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies,November 1993. Professor Rostow was Sterling Professor of Law and Public AffairsEmeritus at Yale University and served as the Dean of Yale Law School (1955-66);Distinguished Research Professor of Law and Diplomacy, National Defense University;Adjunct Fellow, American Enterprise Institute. In 1967 as U.S. Under-Secretary of Statefor Political Affairs he become a key draftee of the UN Resolution 242.

4 Lord Caradon (Sir Hugh Foot) was the UK representative to the UN in 1967. His finaldraft becomes the foundation for UN Resolution 242. See Beirut Daily Star, June 12 1974,as quoted by Leonard J. Davis in Myths and Facts (Washington: Near East Report, 1989),p. 48, cited in Dan Diker, “Does the International News Media Overlook Israel’s LegalRights in the Palestinian-Israeli Conflict,” JCPA, at: http://www.jcpa.org/jl/vp495.htm.

5 Arthur J. Goldberg was a professor of law at the John Marshall Law School in Chicago, andwas appointed in 1962 to the U.S. Supreme Court. In 1965 he was named U.S. repre-sentative to the United Nations. Judge Goldberg was a key draftee of UN Resolution 242.


territories without defining the extent of withdrawal. And it can be inferredfrom the incorporation of the words secure and recognized boundaries that theterritorial adjustments to be made by the parties in their peace settlementscould encompass less than a complete withdrawal of Israeli forces fromoccupied territories”6 [italics by author].

Political figures and international jurists have discussed the existence of“permissible” or “legal occupations.” In a seminal article on thisquestion, Schwebel, the former president of the International Court ofJustice, wrote:

“... a state [E.H., Israel] acting in lawful exercise of its right of self-defensemay seize and occupy foreign territory as long as such seizure and occupationare necessary to its self-defense; (c) where the prior holder of territory hadseized that territory unlawfully, the state which subsequently takes that territoryin the lawful exercise of self-defense has, against that prior holder, better title.

“... as between Israel, acting defensively in 1948 and 1967, on the one hand,and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other,Israel has the better title in the territory of what was Palestine, including thewhole of Jerusalem, than do Jordan and Egypt”7 [italics by author].

Professor Stone, a leading authority on the law of nations, hasconcurred, further clarifying:

“Territorial Rights Under International Law. ... By their [Arab countries]armed attacks against the State of Israel in 1948, 1967, and 1973, and byvarious acts of belligerency throughout this period, these Arab states floutedtheir basic obligations as United Nations members to refrain from threat oruse of force against Israel’s territorial integrity and political independence.These acts were in flagrant violation inter alia of Article 2(4) and paragraphs(1), (2), and (3) of the same article.”8

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6 Goldberg, “U.N. Resolution 242: Origin, Meaning, and Significance.” NationalCommittee on American Foreign Policy. See article at: http://www.mefacts.com/cache/html/arab-countries/10159.htm. (10159)

7 Professor, Judge Stephen M. Schwebel, What Weight to Conquest? in Justice in InternationalLaw, Cambridge University Press, 1994. Opinions quoted in this critiques are not derivedfrom his position as a judge of the ICJ.

8 Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The JohnsHopkins University Press, 1981.




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Border Changes As Arabs Initiate Wars of Aggression

In 1947 Jews accepted the UN “Partition Plan” that recommended a sovereign inde-pendent Jewish State. All Arab countries rejected the “Partition Plan,” and tried to wipeIsrael off the face of the earth. Time and again Israel has returned land it gained in theseArab wars of aggression, in the hope that this will deliver peace and stability. It did not.

1949Israel territory after Israel War ofIndependence.

1956Sinai Campaign: Israel gains controlover the Sinai Peninsula territory.

1957Israel agrees to withdraw its troops fromthe Sinai Peninsula and the Gaza Strip,handing over these territories back toEgypt.

1967Israel boundaries following the Six-DayWar. Egypt, Jordan and Syria in a warof aggression, lost the territories of theSinai Peninsula, the West Bank and theGolan Heights. For the first time Israelis in control of Jewish MandatedPalestine.

1973Israel boundaries following the Yom-Kippur War. In a clear act of aggressionEgypt and Syria attacked the State ofIsrael, but were driven away.

1979-presentOn March 26, 1979, Israel and Egyptsigned a peace treaty on the WhiteHouse lawn. Israel returned the SinaiPeninsula territory to Egypt.


9 Territories – Legality of Jewish Settlements

In advising that Jewish settlements are illegal, the ICJ went beyond itsown mandate from the General Assembly without being asked to do so.

In paragraph 120 of the Court’s opinion, the ICJ declares:

“The Court concludes that the Israeli settlements in the OccupiedPalestinian Territory (including East Jerusalem) have been established inbreach of international law.”

The ICJ based its conclusion on the inappropriate use of an article of theFourth Geneva Convention which stipulates:

“The Occupying Power shall not deport or transfer parts of its own civilianpopulation into the territory it occupies.”

This was coupled with a host of anti-Israeli UN General Assemblyresolutions passed in the 1990s that describe the West Bank and Gaza as“Palestinian Occupied Territories” and declare Israeli settlements –including hundreds of thousands of Jewish Jerusalemites living innumerous new neighborhoods built since 1967 – to be illegal settlers.

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For example, in paragraph 19 of the opinion, the ICJ notes that in 1997the Security Council rejected two one-sided draft resolutions that soughtto brand Israeli settlements as illegal (draft S/1997/1991 and draftS/1997/2412). The ICJ then proceeds to solemnly describe how “theArab Group” maneuvered to by-pass the Security Council and tosubsequently pass General Assembly Resolution ES-10/2 that “expressedits [General Assembly] conviction” and:

“… condemned the ‘illegal Israeli actions’ in occupied East Jerusalem and therest of the Occupied Palestinian Territory, in particular the construction ofsettlements in that territory.”

The ICJ leads the reader to believe that expressing “conviction” in regardto the so-called “illegal Israeli actions in occupied East Jerusalem and therest of the Occupied Palestinian Territory” is sufficient to make thedocument a source of law.

The General Assembly request of the ICJ’s advisory opinion reads:

“Recalling in particular relevant United Nations resolutions affirming thatIsraeli settlements in the Occupied Palestinian Territory, including EastJerusalem, are illegal and an obstacle to peace and to economic and socialdevelopment as well as those demanding the complete cessation of settlementactivities.”3

Again, the ICJ treats its reference to “United Nations Resolutions” as if it wasa source of law, all without checking its accuracy or legal standing.


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1 Rejected – UN Security Council draft resolution S/1997/199, March 7 1997. See:http://domino.un.org/UNISPAL.NSF/0/f97c162f6a30647205256531005b4e15?OpenDocument. (11379)

2 Draft SC Resolution (res no. S/S/1997/241) Vetoed by the U.S. March 21 1997. See:http://domino.un.org/UNISPAL.NSF/0/88f7fb474668764705256531005b7239?OpenDocument. (11380)

3 United Nations, General Assembly Resolution, A/RES/ES-10/14, “Illegal Israeli actions inOccupied East Jerusalem and the rest of the Occupied Palestinian Territory” 12 December2003. See: http://middleeastfacts.org/content/UN-Documents/A-RES-ES-10-14.htm.(10938)



The UN Charter does not grant the General Assembly orthe International Court of Justice the authority to assignor affect ‘ownership’ of the Territories.

As incredulous as it may be, the ICJ chose to ignore the actual powersvested in the UN General Assembly. A host of anti-Israel resolutionspassed annually by the Assembly are not legally binding documents byany measure. One need only to read Article 10 of the UN Charter:

“The General Assembly may discuss any questions or any matters within thescope of the present Charter or relating to the powers and functions of anyorgans provided for in the present Charter, and, except as provided in Article12, may make recommendations to the Members of the United Nations or tothe Security Council or to both on any such questions or matters” [italics byauthor].

Schwebel, the former president of the International Court of Justice, haswritten that:

“… the General Assembly of the United Nations can only, in principle, issue‘recommendations’ which are not of a binding character, according to Article10 of the Charter of the United Nations.”4

Schwebel also cites the (1950) opinion of Judge, Sir Hersch Lauterpacht,a former member judge of the International Court of Justice, whodeclared that:

“… the General Assembly has no legal power to legislate or bind its membersby way of recommendation.”

Yet, another former ICJ judge, Sir Gerald Fitzmaurice, has been just asresolute in rejecting what he labeled the “illusion” that a GeneralAssembly resolution can have “legislative effect.”5


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4 Professor, Judge Stephen M. Schwebel, The Legal Effect of Resolutions and Codes of Conductof the United Nations in Justice in International Law, Cambridge University Press, 1994.Opinions quoted in this critiques are not derived from his position as a judge of the ICJ.

5 Cited in Israel and Palestine, Assault on the law of nations, Professor Julius Stone, TheJohns Hopkins University Press, 1981. p. 29.


Academics and renowned international law experts also agree. ProfessorStone illuminates this subject by pointing out:

“In his book The Normative Role of the General Assembly of the United Nationsand the Declaration of Principles of Friendly Relations, Professor GaetanoArangio-Ruiz6 is led to conclude that the General Assembly lacks legalauthority either to enact or to ‘declare’ or ‘determine’ or ‘interpret’ interna-tional law so as legally to bind states by such acts, whether these states bemembers of the United Nations or not, and whether these states voted for oragainst or abstained from the relevant vote or did not take part in it.”7, 8

Certain General Assembly resolutions may be recognized as “declaratory,”but no more. Among Schwebel conclusions:

“… certain resolutions of the General Assembly – viewed as expressions ofthe assembled States of the world community … which treat questions ofinternational law which are not the subject of principles found in the UnitedNations Charter may be recognized to be declaratory, though not creative, ofinternational law, provided that they are:

(i) adopted with the support of all assembled States, or, at any rate, of all thegroups of States represented in the General Assembly, including major Statesthat are not members of a group, such as the United States of America andChina.”

The Territories and the war of words.

One can easily trace the General Assembly’s attempts to legislate changesin the status of the Territories. How the definition of the status of theTerritories was doctored is well documented on the website of thePalestinian delegation to the United Nations that posts landmark pro-Palestinian decisions. Examination reveals how over the years UN


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6 Professor Gaetano Arangio-Ruiz “The United Nations declaration on friendly relations andthe system of the sources of international law” Publisher: Alphen aan den Rijn, TheNetherlands; Germantown, Md.: Sijthoff & Noordhoff, 1979. ISBN: 902860149X.

7 Ibid, p. 40. Professor Julius Stone – another eminent scholar of international law – labeledRuiz’s work “perhaps the most comprehensive and up-to-date treatise on this matter”.

8 See the Hague Academy of International Law, at: http://www.ppl.nl/bibliographies/all/showresults.php?bibliography=recueil&keyword1ppn=076252078&keyword=General%20Assembly.


General Assembly resolutions and the wording of resolutions by sub-committees moves from “territories” to “occupied territories” to“Occupied Territories” and “Arab territories” to “occupied Palestinianterritories” to “Occupied Palestinian Territory” and “occupiedPalestinian territory, including Jerusalem”:

• Resolution 3236 (XXIX)9 passed in November 1974 speaks of “thequestion of Palestine”;

• Resolution 38/5810 in December 1983 speaks of “Arab territories” and“occupied territories”;

• Resolution 43/17611 passed in December 1988 expresses sentimentssuggesting Palestinian entitlement – speaking of “the Palestinian people[’s]right to exercise their sovereignty over their territory occupied since 1967”;

• Resolution 51/13312 passed in December 1996 adds Jerusalem inparticular – speaking of “occupied Palestinian territory, includingJerusalem, and the occupied Syrian Golan”;

• Resolution 52/25013 passed in July 1998 fully “assigns title” – speaking of“Occupied Palestinian Territory,” a designation that is frequently used insubsequent resolutions.

None of these terms have a legal foundation any more than declaring“the world is flat” makes it so. Yet, the International Court of Justicecites these terms as if they were legal documents, all in violation of theCourt’s Statute.


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9 See: http://domino.un.org/UNISPAL.NSF/0/025974039acfb171852560de00548bbe?OpenDocument. (11382)

10 See: http://domino.un.org/UNISPAL.NSF/0/2fdd47753d2ae353852560d8006ca36b?OpenDocument. (11383)

11 See: http://domino.un.org/UNISPAL.NSF/0/8ff8af940beaf475852560d60046f73f?OpenDocument. (11384)

12 See: http://domino.un.org/UNISPAL.NSF/0/4080cb55ac61c2658025646c002a89a3?OpenDocument. (11385)

13 See: http://daccessdds.un.org/doc/UNDOC/GEN/N98/773/11/PDF/N9877311.pdf?OpenElement. (11386)



It should be noted that the coining of the term “Occupied PalestinianTerritory” by the General Assembly, and all the more so its ‘adoption’ bythe International Court of Justice, is contrary to, and totally incompatiblewith, Article 12 of the UN Charter which states:

“While the Security Council is exercising in respect of any dispute orsituation the functions assigned to it in the present Charter, the GeneralAssembly shall not make any recommendation with regard to that dispute orsituation unless the Security Council so requests” [italics by author].

International law allows for “just wars” and “lawfuloccupation.”

Resolutions 242 and 338 (discussed in Chapter 8) are the cornerstonesfor how a “just and lasting peace” should be achieved. The term‘Occupied Palestinian Territory’ does not appear in either, not even theterm ‘occupied territory.’ Resolution 242 affirms that:

“… fulfillment of the Charter principles requires the establishment of a justand lasting peace in the Middle East which should include the application ofboth the following principles: Withdrawal of Israeli armed forces fromterritories occupied in the recent conflict; Termination of all claims or statesof belligerency and respect for and acknowledgement of the sovereignty,territorial integrity and political independence of every State in the area andtheir right to live in peace within secure and recognized boundaries free fromthreats or acts of force.”

The ICJ ignores that there is such a quality as a “lawful occupation.” Inessence the ICJ seeks to overturn Security Council Resolutions 242 and338, and to de-legitimize Israel’s right to claim any territory over theGreen Line, even for self-defence.

In paragraph 74 of the opinion, the ICJ prefers a highly questionable,abridged rendition of these two core documents in a way that makes itappear as if Israel was an aggressor:

“On 22 November 1967, the Security Council unanimously adoptedresolution 242 (1967), which emphasized [E.H., Principle I] theinadmissibility of acquisition of territory by war and [E.H., Principle II]


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called for the ‘Withdrawal of Israel armed forces from territories occupied inthe recent conflict,’ and [E.H., Principle III] ‘Termination of all claims orstates of belligerency.’”

ICJ selective writing falsifies historical documents.

The ICJ misleads the readers by simply removing from the secondprinciple [Principle II above] the need, as stated in Resolution 242, for“secure and recognized boundaries” that will not invite aggression. Inany case, the ICJ cannot override Security Council resolutions nor canit edit or fix them. Such doctored use of “the inadmissibility of theacquisition of territory by force” is disingenuous.

It is impossible to believe that the ICJ was unfamiliar with the basic rulesgoverning the workings of the UN that are most relevant inunderstanding the meaning of the Security Council’s power and the twotypes of resolutions it may adopt:

Resolutions adopted under Chapter VI of the UN Charter –Recommending “Pacific Resolution of Dispute”:

Resolutions the Security Council adopts under Chapter VI are intended tobe followed and implemented via negotiated settlements between concernedparties. One of the UN resolutions adopted under Chapter VI of the UNCharter is Resolution 242, adopted after the 1967 Six-Day War. It calls onIsrael and its Arab neighbours to accept the resolution through negotiation,arbitration and conciliation. Under Chapter VI of the UN Charter, therecommendations of UN Resolution 242 cannot be imposed on the partiesconcerned, as Arab leaders often argue. In fact, the title of Chapter VI alsooffers a clue to its nature, for it deals with “Pacific Resolution of Disputes.”

Resolutions adopted under Chapter VII of the UN Charter – Dealingwith the “Threats to Peace …”:

In contrast, resolutions adopted by the Security Council under Chapter VIIinvest the Security Council with power to issue stringent resolutions thatrequire nations to comply with the terms and directives set forth in theresolution. This leaves no room to negotiate a settlement with the affectedparties. Thus, Chapter VII deals with “Threats to Peace, Breaches of thePeace and Acts of Aggression.”


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When Iraq invaded Kuwait in 1990, the Security Council adoptedresolutions under Chapter VII that only required the aggressor, Iraq, tocomply.14

Had Israel been an aggressor – where the territories were “occupiedterritories” taken by force in an unjust war – Resolution 242 would havebeen adopted under Chapter VII of the UN Charter, requiring Israel tocomply … and not under Chapter VI.

In paragraph 26 of its opinion, the ICJ notes that Chapter VIIempowers the Security Council to “require enforcement by coerciveaction,” thus implying that this Chapter is somehow relevant to theseproceedings. Chapter VI isn’t even mentioned in the ICJ’s opinion – notin general and not with regard to Resolutions 242 or 338, although theBench cites “242 (1967)” no less than seven times, providing ampleopportunity to clarify that 242 adopted under Chapter VI of the UNCharter is intended to be followed and implemented via negotiatedsettlements between the concerned parties, and not by this Court.

Ignoring just wars and legal occupation.

It is important to note here that the ICJ refuses to even acknowledge theexistence of scholarly literature that addresses the issue of seizure ofterritory in just wars written by internationally respected, formermembers of the ICJ. The ICJ simply turns a blind eye to the fact thatsome wars are just wars and not all occupations are illegal – as in theIsraeli case, so clearly reflected by the unanimous adoption of UNSecurity Council Resolution 242 under Chapter VI.

As noted earlier, Lauterpacht pointed out in his writing that:

“… territorial change cannot properly take place as a result of the ‘unlawful’use of force. But to omit the word ‘unlawful’ is to change the substantive


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14 UN Security Council Resolution 678, S/RES/0678 (1990), November 29 1990. See:http://www.mefacts.com/cache/html/icj/11446.htm. (11446)



content of the rule and to turn an important safeguard of legal principle intoan aggressor’s charter. For if force can never be used to effect lawful territorychange, then, if territory has once changed hands as a result of the unlawfuluse of force, the illegitimacy of the position thus established is sterilized bythe prohibition upon the use of force to restore the lawful sovereign. Thiscannot be regarded as reasonable or correct.”15

This argument, which is widely recognised, goes unnoticed or isconsciously and purposely ignored by the Court.

The ICJ’s sweeping ‘adoption’ of the General Assembly’s resolutions – asif they were legally binding or a source of international law – and theICJ’s unauthorized ‘illegal transfer’ of unallocated disputed territories toone of the sides in the conflict, is all the more ironic in light of the ICJ’smain contention: that Israel’s actions are primarily political and notsecurity motivated, and that these actions constitute a fait accompli,declaring in paragraph 121 of the opinion:

“The Court considers that the construction of the wall and its associatedrégime create a ‘fait accompli’ on the ground that could well becomepermanent, in which case, and notwithstanding the formal characterizationof the wall by Israel, it would be tantamount to de facto annexation.”

This begs the question: Are the ICJ’s own actions in arbitrarily handingover ownership and title to all territories beyond the Green Line to thePalestinians – including East Jerusalem – not tantamount to unlawful defacto annexation?

Professor Stone cites in his writings that in 1975 the ICJ has been:

“insistent, not least as regards [to] questions of territorial title, that the rulesand concepts of international law have to be interpreted ‘by reference to thelaw in force’ and ‘the State practice’ at the relevant period [italics by author].

“Judge de Castro in his Separate Opinion (ibid., 127, at 168 ff.) declared theprinciple tempus regit factum as a recognized principle of international law.


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He continued (p. 169): ‘Consequently, the creation of ties with or titles to aterritory must be determined according to the law in force at the time. ... Therule tempus regit factum must also be applied to ascertain the legal force ofnew facts and their impact on the existing situation.’ He went on to illustratethis influence of ‘new facts and new law’ by reference to the impact on thesuppression of the colonial status of Western Sahara by the principles con-cerning non-self-governing territories emanating from the United-Nations Charter and the later application to them of the principle of Self-determination (pp. 169-71). This limiting rider has reference to theappearance of new principles of international law, overriding the differentprinciples on which earlier titles are based. But, of course, it can have noapplication to vested titles based, as was the very territorial allocation betweenthe Jewish and Arab peoples, on the principle of self-determination itself.”16

If the so-called West Bank and Gaza were indeed occupied territory –belonging to someone else and unjustly seized by force – there could be nogrounds for negotiating new borders, as UN Security Council Resolution242 implies.

The ICJ charges that Jewish settlements in the WestBank are populated by settlers ‘deported by force.’

Once the ICJ has ‘established evidence’ that the West Bank and Gaza areunlawfully occupied territories, it then applies this status to the FourthGeneva Conference17 de jure, stating in paragraph 120 of the opinion that:

“As regards these settlements, the Court notes that Article 49, paragraph 6,of the Fourth Geneva Convention provides: ‘The Occupying Power shall notdeport or transfer parts of its own civilian population into the territory itoccupies.’

“In this respect, the information provided to the Court shows that, since 1977,Israel has conducted a policy and developed practices involving theestablishment of settlements in the Occupied Palestinian Territory, contraryto the terms of Article 49, paragraph 6, just cited” [italics by author].


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16 Majority Opinion in the Western Sahara case, I.C.J. Reports, 1975, p. 12, esp. at 38-39)as cited by Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations. TheJohns Hopkins University Press, 1981, p. 127.

17 Geneva Convention relative to the Protection of Civilian Persons in Time of War. See:http://www.unhchr.ch/html/menu3/b/92.htm. (10356)



One can hardly believe this baseless ICJ assertion that Israel used“deportation” and “forced transfer” of its own population into “occupiedterritories.”

The Court attempts to broaden the definition of Article 49 to possibly‘fit’ some wrong doing on the part of the State of Israel, all with noreference to law, adding:

“That provision prohibits not only deportations or forced transfers ofpopulation such as those carried out during the Second World War, but alsoany measures taken by an occupying Power in order to organize or encouragetransfers of parts of its own population into the occupied territory.”

In the above conclusion, the ICJ fails to disclose the content of the“information provided” (information the Court based its decision on),and the anonymous ‘authorities’ that provided such. Anyone interested inthe subject at hand is aware of the difficulties the Israeli Governmentfaces in its decision to relocate some Israeli settlements out of the“Territories,” a fact that seems to be contrary to the “informationprovided” to the ICJ.

Professor Stone touches on the applicability of Article 49 of the GenevaConvention. Writing on the subject in 1980:

“… that because of the ex iniuria principle, Jordan never had nor now hasany legal title in the West Bank, nor does any other state even claim suchtitle. Article 49 seems thus simply not applicable. (Even if it were, it may beadded that the facts of recent voluntary settlements seem not to be caught bythe intent of Article 49 which is rather directed at the forced transfer of thebelligerent’s inhabitants to the occupied territory, or the displacement of thelocal inhabitants, for other than security reasons.) The Fourth GenevaConvention applies only, according to Article 2, to occupation of territorybelonging to ‘another High Contracting Party’; and Jordan cannot show anysuch title to the West Bank, nor Egypt to Gaza.”

Support to Stone’s assertion can be found in Lauterpacht’s writing in1968:

“Thus Jordan’s occupation of the Old City– and indeed of the whole of the areawest of the Jordan river–entirely lacked legal justification; and being defective


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in this way could not form any basis for Jordan validly to fill the sovereigntyvacuum in the Old City [and whole of the area west of the Jordan river].”18

Rostow concludes that the Convention is not applicable to Israel’s legalposition and notes:

“The opposition to Jewish settlements in the West Bank also relied on a legalargument – that such settlements violated the Fourth Geneva Conventionforbidding the occupying power from transferring its own citizens into theoccupied territories. How that Convention could apply to Jews who alreadyhad a legal right, protected by Article 80 of the United Nations Charter, tolive in the West Bank, East Jerusalem, and the Gaza Strip, was neverexplained.”19

It seems that the International Court of Justice “never explained” it either.

By default, ICJ support of the “Mandate for Palestine”suggests it is actually supporting Jewish settlement inPalestine. Is the ICJ confused?

The ICJ concluded that under the Fourth Geneva Conference, Jewishsettlements in the “Territories” are illegal, which brings up the need toreconcile two of the ICJ’s conflicting positions:

The first, as noted above, is the ICJ opinion regarding the illegal Jewishsettlements in the “Territories.”

The second, refers to the ICJ ‘adoption’ of the “Mandate for Palestine”– a document which under Article 6 testifies to the legality of Jewishsettlements in Palestine that:

“encourage, in co-operation with the Jewish agency referred to in Article 4,[building] close settlement by Jews on the land, including State lands and wastelands not required for public purposes”20 [italics by author].


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19 Professor Eugene V. Rostow, see: http://www.law.yale.edu/outside/pdf/Public_Affairs/ylr50-2/Rostow.pdf.

20 See Appendix A. “Mandate for Palestine.”


The ICJ ignores that under both international convention21 and Article80 of the UN Charter, all of western Palestine is legally open to settle-ment by Jews, and at best, the West Bank and Gaza are unallocatedterritory left over from the British Mandate to which there are twoclaimants.

Paragraph 88 of the Court’s opinion stated that:

“… the ultimate objective of the sacred trust” referred to in Article 22,paragraph 1, of the Covenant of the League of Nations “was the self-determination … of the peoples concerned.”

The ICJ seems confused. It attempts to links the “sacred trust” to thewrong “people concerned”!

UN Charter and Article 80.

International law, the UN Charter, and specifically Article 80 of the UNCharter implicitly recognize the “Mandate for Palestine” of the League of Nations. This Mandate granted Jews the irrevocable right to settle in the area of Palestine, anywhere between the Jordan River and the Mediterranean Sea. Rostow explains:

“This right is protected by Article 80 of the United Nations Charter. TheMandates of the League of Nations have a special status in international law,considered to be trusts, indeed ‘sacred trusts.’

“Under international law, neither Jordan nor the Palestinian Arab ‘people’ ofthe West Bank and the Gaza Strip have a substantial claim to the sovereignpossession of the occupied territories.”22


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21 Ibid. 22 Eugene V. Rostow, The Future of Palestine from the paper delivered at the American

Leadership Conference on Israel and the Middle East in Arlington, Virginia. October 10 1993.See: http://middleeastfacts.org/content/book/The%20Future%20of%20Palestine.htm.(10509)



It is interesting to learn how Article 80 made its way into the UNCharter. Professor Rostow recalls:

“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for manyyears been my mentor on the history of Zionism, for reminding me of someof the circumstances which led to the adoption of Article 80 of the Charter.Strong Jewish delegations representing differing political tendencies withinJewry attended the San Francisco Conference in 1945. Rabbi Stephen S.Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion Netanayu and A. S.Yehuda, and Harry Selden were among the Jewish representatives. Theirmission was to protect the Jewish right of settlement in Palestine under themandate against erosion in a world of ambitious states. Article 80 was theresult of their efforts.”

The ICJ ignores the history of Jewish life in the areacalled Palestine.

The ICJ also ignores that Jews who had settled in these areas duringalmost 30 years of “Mandate” government and, in fact, for thousands ofyears in areas such as Hebron and the Old City of Jerusalem (in so-called“East Jerusalem”), in Kfar Darom in Gaza or the Etzion Bloc nearHebron, were either killed or driven out by the Arabs during the 1948War. All areas of western Palestine that remained under Arab controlwere rendered racially cleansed of Jews – by Jordanian and Egyptianinvaders, an act that in today’s parlance would be labeled “ethniccleansing.” Even the 2,000 Jewish inhabitants of the Jewish Quarter ofthe Old City [of Jerusalem], who lived adjacent to the holiest site toJudaism, the Western Wall in the shadow of the Temple Mount, were anintolerable presence to Arabs.

While the ICJ opinion mentions Jerusalem 54 times, all references arein relation to Palestinian rights of free access to holy sites. The ICJignores the fact that not one Jew was allowed to reside or even visit theWest Bank and the Old City of Jerusalem for 19 years of illegalJordanian rule. Between 1949 and 1967, Jordanian military personnel


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overran and razed Jewish settlements to the ground, trashed some 58synagogues, and used headstones from the Mount of Olives cemetery tobuild roads.23 After the 1967 Six-Day War, Jews reestablished their legalright to settle anywhere in western Palestine – an entitlement unalteredin international law since 1920 and valid to this day.

Invoking the Fourth Geneva Convention to make any Jewish presencein the West Bank, including the Old City of Jerusalem, ‘illegal’ is hardlyapplicable – neither from an historical, nor from a legal standpoint.

Where Jews are and are not permitted to settle.

The ICJ chooses to ignore the content of the “Mandate for Palestine”and accompanying legally binding international accords that set theboundaries of the Jewish mandate and delineate where Jews are and arenot permitted to settle.

The Court opinion cites in paragraph 70 – almost parenthetically – that:

“The territorial boundaries of the Mandate for Palestine were laid down byvarious instruments, in particular on the eastern border by a Britishmemorandum of 16 September 1922 and an Anglo-Transjordanian Treaty of20 February 1928.”

The reader is left in the dark as to what these “instruments” say or towhat the text refers. No wonder. The ICJ does not quote the content ofthese two key international treaties and ignores the relevant clauses ofthe Mandate itself vis-à-vis the status of western Palestine, because citingthese treaties and clauses would collapse the foundations of thecommonly-held assumption that Israeli settlements are ‘illegal’. It isimportant to set the record straight. The “eastern border” the ICJ chosenot to discuss was the Jordan River.

At first, the six page “Mandate” document did not set the borders –


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23 Jeff Jacoby, “When Jerusalem was divided,” see: http://www.mefacts.com/cache/html/territories/11304.htm. (11304)



leaving this for the Mandator to stipulate in a binding appendix to thedocument in the form of a memorandum, but Article 6 of the Mandatesays clearly:

“The Administration of Palestine, while ensuring that the rights and positionof other sections of the population are not prejudiced, shall facilitate Jewishimmigration under suitable conditions and shall encourage, in co-operationwith the Jewish agency referred to in Article 4, close settlement by Jews on theland, including State lands and waste lands not required for public purposes”[italics by author].

Article 25 of the “Mandate for Palestine” entitled the Mandatory tochange the terms of the Mandate in the part of the Mandate east of theJordan River. That is, it gave the Mandatory an ‘escape clause’ that wasnot applicable to western Palestine:

“In the territories lying between the Jordan and the eastern boundary ofPalestine as ultimately determined, the Mandatory shall be entitled, with theconsent of the Council of the League of Nations, to postpone or withholdapplication of such provision of this Mandate as he may considerinapplicable to the existing local conditions, …”24

Great Britain activated this option in the above-mentioned memorandumof September 16 1922, which the Mandatory sent to the League ofNations and which the League subsequently approved – making it alegally binding integral part of the Mandate.

Thus the “Mandate for Palestine” brought to fruition a fourth Arab stateeast of the Jordan River, realized in 1946 when the Hashemite Kingdomof Trans-Jordan was granted independence from Great Britain. All theclauses concerning a Jewish homeland would not apply to this part(Trans-Jordan) of the original Mandate, stating clearly:

“The following provisions of the Mandate for Palestine are not applicable tothe territory known as Trans-Jordan, which comprises all territory lying tothe east of a line drawn from … up the centre of the Wady Araba, Dead Seaand River Jordan. … His Majesty’s Government accept[s] full responsibilityas Mandatory for Trans-Jordan.”


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24 See: Appendix A. “Mandate for Palestine.”


The creation of an Arab state in eastern Palestine (today Jordan) on 77percent of the land mass of the original Mandate for Jews, in no waychanged the status of Jews west of the Jordan River and their right tosettle anywhere in western Palestine, between the Jordan River and theMediterranean Sea.

These documents are the last legally binding documents regarding thestatus of what is commonly called “the West Bank and Gaza.”

The memorandum (regarding Article 25) is also the last modification ofthe Mandate on record25 by the League of Nations or by its legalsuccessor – the United Nations – in accordance with Article 27 of theMandate that states unequivocally:

“The consent of the Council of the League of Nations is required for anymodification of the terms of this mandate.”

But to note or to quote these documents would ‘spoil’ the ICJ’s chargethat Israeli settlements are “illegal” and that Israel is an unlawful“occupying power” of land that ‘belongs’ to Palestinian Arabs.

The ICJ even uses its own opinions in a selective manner. Under themistaken assumption that Palestinian self-determination was set in stoneby the international community in 1922 by the Mandate for Palestine,the Bench quotes a previous opinion on Namibia that addresses the fateof League of Nations’ mandates, stating in paragraph 70 of the opinion:

“…two principles were considered to be of paramount importance: theprinciple of non-annexation and the principle that the well-being anddevelopment of … peoples [not yet able to govern themselves] form[ed] ‘asacred trust of civilization.’”26


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25 Ibid.26 The latter – a quote from Article 73 of the UN Charter.


The term “sacred trust” quoted by the ICJ is borrowed from the UnitedNations Charter Article 7327 which recognizes the UN’s commitments ofits predecessor – the League of Nations – and promises to carry throughto fruition the mandate system the League of Nations created, enshrinedin Article 22 of the League of Nations Charter. Thus, the Bench quotesfrom its own 1950 opinion when it believes it supports the Palestiniancause, but the Bench also fails to mention that in the same case underthe ICJ Advisory Opinion of 21 June 1971, the ICJ says:

“…The International Court of Justice has consistently recognized that theMandate survived the demise of the League [of Nations]” [italics by author].

In other words, neither the ICJ nor the General Assembly can arbitrarilychange the status of Jewish settlement as set forth in the “Mandate forPalestine,” an international accord that was never amended.

All of western Palestine, from the Jordan River to the MediterraneanSea, including the West Bank and Gaza, remains open to Jewishsettlement under international law until a legally binding document – inIsrael’s case, a peace treaty between Arabs and Jews that was called for inSecurity Resolution 242 and 338 – changes this.

Rostow’s position concurred with the ICJ’s opinion as to the“sacredness” of such trusts:

“A trust” – as in Article 80 of the UN Charter (which the Court avoids tomention) – “does not end because the trustee dies … the Jewish right ofsettlement in the whole of western Palestine – the area West of the Jordan –survived the British withdrawal in 1948. … They are parts of the mandateterritory, now legally occupied by Israel with the consent of the SecurityCouncil.”28


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27 Charter of the United Nations at: http://middleeastfacts.org/content/UN-Documents/UN_Charter_One_Document.htm. (11032)

28 Professor Eugene V. Rostow was Sterling Professor of Law and Public Affairs Emeritus atYale University and served as the Dean of Yale Law School (1955-66); In 1967 as U.S.Under-Secretary of State for Political Affairs he become a key draftee of UN Resolution242. http://www.mefacts.com/cache/html/bio/10956.htm. (10956)



The Oslo Accords and the Gaza-Jericho agreementsrecognize Israel legal presence in the “Territories.”

Even the Oslo Accords do not forbid either Israeli (i.e., Jewish) or Arabsettlement activity. Likewise, the ICJ does not consider it relevant thatthe propriety of a security fence around Gaza was written into the Gaza-Jericho agreement, between Israel and the PLO, signed in Cairo, May 41994, and that Israel retained the right to provide for security, includingthe security of Israeli settlers.

“The Parties agree that, as long as this Agreement is in force, the security fenceerected by Israel around the Gaza Strip shall remain in place and that the linedemarcated by the fence, as shown on attached map No. 1, shall beauthoritative only for the purpose of this Agreement”29 [italics by author].

The ICJ’s narrative of how the Territories came into thepossession of Israel is void of any context and sanitizedof any trace of past and present Arab aggression.

The backdrop to the 1967 Six-Day War – the expulsion by Egypt of UNpeace-keepers from the Sinai Peninsula, Egypt’s illegal blockade of aninternational waterway, the massing of Egyptian troops on Israel’sborders, and Jordan attacking the Israeli-held part of Jerusalem –mysteriously disappears from the ICJ’s narrative. The ICJ jumps fromthe signing of the 1948 armistice agreements that established the GreenLine as a temporary border, to the aftermath of the 1967 Six-Day Warin one step. Paragraph 72 of the opinion recounts how:

“By resolution 62 (1948) of 16 November 1948, the Security Councildecided that ‘an armistice shall be established in all sectors of Palestine’ andcalled upon the parties directly involved in the conflict to seek agreement tothis end. … The Demarcation Line was subject to such rectification as mightbe agreed upon by the parties.”30


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29 Gaza-Jericho agreement. See: http://www.mefacts.com/cache/html/arab-peace-agreements/11371.htm (11371)

30 UN Security Council Resolution of November 16 1948. See: http://domino.un.org/UNISPAL.NSF/0/1a2b613a2fc85a9d852560c2005d4223?OpenDocument. (11381)




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Paragraph 73 of the Court’s opinion immediately follows, saying:

“In the 1967 armed conflict, Israeli forces occupied all the territories whichhad constituted Palestine under British Mandate (including those known asthe West Bank, lying to the east of the Green Line).”

Readers might think that Israel just woke up one morning and out of theblue attacked its neighbors and occupied part of their territory withoutprovocation. In fact, both the events and UN resolutions of the periodsubstantiate and recognize that Israel’s presence in the West Bank andGaza is a legal occupation, and a result of Arab aggression.

The Principal Allied Powers and the League of Nationsrecognized Jewish historical rights to the land of Palestine.

Mandate for Palestine document, 1920:

“Whereas recognition has thereby been given to the historical connection of theJewish people with Palestine and to the grounds for reconstituting their nationalhome in that country …”

Report on the economic and commercial situation of Palestine, 1921:

“… Jews throughout the world would be able to see one country in whichtheir race had a political and a spiritual home, in which, perhaps, the Jewishgenius might repeat the services it had rendered to mankind from the samesoil long ago” [italics by author].

Report of The High Commissioner of Palestine, 1920-1925:

“Jewish National Home in Palestine … should be formally recognised to restupon [Jewish] ancient historic connection … fervid imaginations saw a rapidoccupation of the country by great numbers of Jews, hurrying from the landsin which they were oppressed, the consequent creation, within a few years, ofa Jewish State, the sudden fulfillment in almost apocalyptic fashion of the mostfar reaching of the ancient prophecies. … Among the eight millions of Jews inEastern Europe … Palestine makes to them a most powerful appeal; they wishparticularly to contribute to the productiveness of Palestine and above all tohelp to recreate in Palestine a people of Jewish agriculturists” [italics by author].

Palestine Royal Commission report, July 1937:

“… [The Jewish people] should know that it is in Palestine as of right and noton sufferance … and that it should be formally recognized to rest upon ancienthistoric connection” [italics by author].


10 The Supreme Court of the State of Israel

The ICJ does not follow the directive in its mandate that requires it touse the most qualified and valued writing of law of other nations – inthis case Israel. The Bench ignores the rulings of the Supreme Court ofthe State of Israel [acting in the cases cited, as the High Court of Justice– HCJ] that could directly contribute to its own investigation of legalityand proportionality.

The ICJ’s Statute1 requires it “to decide in accordance with international law” and to apply “… the most highly qualified publicistsof the various nations.” In this case, the relevant writings of the SupremeCourt of the State of Israel should have been applied “as subsidiarymeans for the determination of the rules of law.”

The ICJ’s evaluation of the validity of supporting evidence appears to becarefully tailored to support forgone conclusions, including the ICJ’sown rules that the Bench seems to ignore. Article 38, rule 1(d) of theCourt Statute requires that the Court:

“Shall apply: … Judicial decisions and the teachings of the most highlyqualified publicists of the various nations [to] determine rules of law.”

T H E S U P R E M E C O U R T O F T H E S T A T E O F I S R A E L

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1 Statute of The International Court of Justice at: http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm. (10485)



The Bench even ignores the writings of former members of its ownBench, including a past president of the Court, as well as a host of othereminent jurists and academic scholars of international law.

In his writing on Government Legal Advising in the Field of Foreign Affairsabout what influences and makes international laws, the formerpresident of the International Court of Justice, Judge Schwebel, writes:

“International law is largely the creation of Governments. In that creativeprocess, those who render legal advice to Governments play a critical part (inpresent case the Supreme Court of the State of Israel). The forces whichshape international law, like the forces which shape international affairs, aremany and complex. But what is singular and clear is that those who adviseGovernments on what international law is and should be exert a particular,perhaps at times a paramount, influence on the formation of internationallaw.”2

United States Supreme Court Justice Stephen G. Breyer has said that:

“the United States could learn from compromises Israeli courts have struckto balance terrorism and human rights concerns”3 [italics by author].

At first glance, it would seem that the ICJ recognizes this fact. Closerexamination reveals that when convenient, this same Court relies on theIsrael Supreme Court to reach a conclusion that fits its thinking, but itsees nothing improper in ignoring the decisions most relevant to thiscase by the Israeli Supreme Court when its findings differ from the ICJ’s.Thus, the ICJ supports the applicability of the Hague and GenevaConventions by citing in paragraph 100 of the ICJ opinion, a May 302004 ruling by the Supreme Court of the State of Israel sitting as a High


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2 Professor, Judge Stephen M. Schwebel, Government Legal Advising in the Field of ForeignAffairs in Justice in International Law, Cambridge University Press, 1994. Opinions quotedin this critiques are not derived from his position as a judge of the ICJ.

3 “Justice: Israeli courts could teach U.S. something about compromise,” Associated Press,September 13 2003. See: http://www.mefacts.com/cache/html/human-rights/10308.htm.(10308)



Court of Justice.4 The ICJ noted that Israel’s highest court of justiceruled that:

“… the military operations of the [Israeli Defense Forces] in Rafah, to theextent they affect civilians, are governed by Hague Convention IVRespecting the Laws and Customs of War on Land 1907 … and the GenevaConvention Relative to the Protection of Civilian Persons in Time of War1949.”5

Yet, when it comes to a far more fundamental question – the purpose ofthe security fence and whether it is justified in light of the injury itcauses Palestinians6 – the expertise and experience of the Supreme Courtof the State of Israel are no longer deemed valid. In paragraph 140 of theICJ opinion, the Bench declares:

“… In the light of the material before it, the Court is not convinced that theconstruction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked asjustification for that construction.”

What is the highly qualified material before the ICJ? Or, to be moreprecise, is there highly relevant material that the ICJ arbitrarily judgedto be immaterial?

If the Israeli Supreme Court can contribute to the case, why is there nomention whatsoever of a ruling handed down by the Supreme Court ofthe State of Israel, sitting as the High Court of Justice, in the case of BeitSourik Village Council v. 1. The Government of Israel, (HCJ 2056/04)dated June 30 20047 that also recognizes the applicability of the Hagueand Geneva Conventions, and is also directly connected to the securitybarrier issue?


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4 In Hebrew “Baggatz.”5 HCJ 4764/04, May 30 2004, “Physicians for Human Rights v. Commander of the IDF

Forces in the Gaza Strip,” at: http://www.mefacts.com/cache/pdf/icj/11387.pdf. (11387)

6 The wording of the Advisory Opinion does not ask what its ramifications for Israelis are…7 HCJ 2056/04, June 30 2004, “Beit Sourik Village Council v. 1.The Government of Israel,”

at: http://www.mefacts.com/cache/html/israel/10926.htm. (10926)



The case is not hard to find in the online archive of the Israeli Court. Inaddition, the decision received worldwide exposure, reportedinternationally in most major media outlets.8 Moreover, the IsraeliCourt’s Judge Aaron Barak notes in the opening paragraph of the secondcase, the June 30 2004 ruling: “The question before us is whether theorders and the Fence are legal.”

Examination of the Israeli Court’s ruling reveals why the ICJ preferred toquote a ruling that deals with alleged lack of access to medical treatmentfor civilians in Rafiah (Rafah) in the Gaza Strip in the midst of IsraelDefense Forces (IDF) military operations, rather than a ruling thataddresses the legality of the security barrier, which is on the West Bank,directly relevant to the case.

The Israeli Supreme Court devoted seven court sessions to hearing theappeal of one Palestinian village that felt it had been wronged by seizureof some of its land to construct the security barrier. The June 30 2004judgment is 22,000 words long. The Israeli Court describes at lengthboth the all-pervasive and insidious character of Palestinian terrorismand the injury to Palestinian civilians caused by the security barrier. Itconcludes in paragraph 28:

“We examined petitioners’ arguments and have come to the conclusion,based upon the facts before us, that the Fence is motivated by security concerns.As we have seen in the government decisions concerning the construction ofthe Fence, the government has emphasized, numerous times, that ‘the Fence,like the additional obstacles, is a security measure. Its construction does notexpress a political border, or any other border.’ (Decision of June 23 2002).

“The obstacle that will be erected pursuant to this decision, like othersegments of the obstacle in the Seam Area, is a security measure for theprevention of terror attacks and does not mark a national border or any otherborder” (Government of Israel, decision of October 1 2003) [italics byauthor].


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8 See for example The New York Times, “Israeli Court Orders Changes to Barrier in WestBank,” June 30 2004, at: http://www.mefacts.com/cache/html/icj/11388.htm. (11388)



The Israeli Supreme Court’s ruling doesn’t even rate a rebuttal in theICJ’s opinion. It simply does not exist, or it is judged to be immaterialto the case.

It is clear there is another reason why the ICJ chose not to highlight thiscase. On the surface, from the ICJ’s point of view, the judgment by theIsraeli Court is just as good. The Israeli judgment says clearly inparagraph 23:

“The authority of the military commander flows from the provisions ofpublic international law regarding belligerent occupation. These rules areestablished principally in the Regulations Concerning the Laws and Customsof War on Land, The Hague, 18 October 1907 [hereinafter – the HagueRegulations]. These regulations reflect customary international law. Themilitary commander’s authority is also anchored in IV Geneva ConventionRelative to the Protection of Civilian Persons in Time of War 1949[hereinafter – the Fourth Geneva Convention].”9

But the judgment goes beyond this. The Israeli ruling also explains howthe Israeli Court views adjudication of appeals for protection under theHague and Geneva Conventions. In a very lengthy and thoughtfuldiscussion of the challenges facing any court, the president of the IsraeliSupreme Court says in paragraph 36:

“The problem of balancing security and liberty is not specific to thediscretion of a military commander of an area under belligerent occupation.It is a general problem in the law, both domestic and international. Itssolution is universal. It is found deep in the general principles of law, whichinclude reasonableness and good faith. … One of these foundational prin-ciples, which balance the legitimate objective with the means for achieving it,is the principle of proportionality. According to this principle, the liberty ofthe individual can be limited (in this case, the liberty of the local inhabitantsunder belligerent occupation), on the condition that the restriction isproportionate. This approach applies to all types of law.”


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9 Israel Supreme Court, ruling HCJ 2056/04, June 30 2004, Beit Sourik Village Council v.1.The Government of Israel, at: http://www.mefacts.com/cache/html/israel/10926.htm.(10926)



In paragraph 44, the Israeli Supreme Court adds:

“The key question regarding the route of the Fence is: Is the route of theSeparation Fence proportionate? The proportionality of the Separation Fencemust be decided by the three following questions … First, does the route passthe ‘appropriate means’ test? ... The question is whether there is a rationalconnection between the route of the Fence and the goal of the constructionof the Separation Fence. Second, does it pass the test of the ‘least injurious’means? The question is whether, among the various routes which wouldachieve the objective of the Separation Fence, is the chosen one the leastinjurious. Third, does it pass the test of proportionality in the narrow sense?The question is whether the Separation Fence route, as set out by the militarycommander, injures the local inhabitants to the extent that there is no properproportion between this injury and the security benefit of the Fence.”

In a subsequent case, known as Alfei Menashe, HCJ 7957/04, September15 2005, the Supreme Court of Israel held that according to inter-national law regarding belligerent occupation, erecting a separationfence that minimizes the impediment of the local population in order toprotect the lives and safety of Israeli settlers in Judea and Samaria (WestBank) is legal.10

The International Court of Justice distorts the Israelicourt’s intention.

For the ICJ to simply quote the Israeli court as ‘accepting theapplicability of the Hague and Geneva Conventions dealing withbehavior towards civilians in wartime’ while failing to explain what theIsraeli court actually means by this, hardly does justice to the IsraeliSupreme Court. In fact, such conduct by the ICJ warps the true positionof the Israeli court, which demonstrates just how difficult it really is toweigh the merits of such a case where the ‘right to life’ of potentialvictims of Palestinian terrorism must be balanced against non-lethalinjury to Palestinian non-combatants. Such input would be welcome in


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10 For a summary of the Judgment in English, see: http://elyon1.court.gov.il/heb/dover/html/hodaot_hanhalat.htm#msg4863. (11547) For complete text in Hebrew, see 11542.



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any fair and judicious Court, but not to the ICJ, which lacks anymilitary and security experience and never experienced life underconstant terrorism, and was not interested in struggling with this issue.

In paragraph 100 of the ICJ opinion, the Bench mischaracterized theSupreme Court of Israel’s limited acceptance of the applicability ofGeneva Convention, warping the Israel court’s intention and misleadingthe reader with selective use. The Supreme Court of the State of Israeldid not rule that the West Bank and Gaza are Occupied PalestinianTerritories and never suggested that the Geneva Convention applies tothe legal status of Israeli settlers. Israel signed the Fourth GenevaConvention on August 12 1949, and ratified it on July 6 1951. Sincethen, including after the 1967 war, Israel has not denounced theConvention, as permitted by the convention’s Article 158.

As articulated in 1971 by then Attorney General of Israel, Meir Shamgar(who in 1983 became President of the Supreme Court), Israel voluntarilyabides by the humanitarian provisions of the Geneva Convention in theWest Bank and Gaza Strip, despite pointing out that Israel and otherworld renowned experts of international law believe that theConvention does not apply to these territories de jure.




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11 Arab Consistent Behavior andPrecedent for Fencing

The ICJ ignores the remarkably consistent Arab behavior in mandatedPalestine that is documented in the Mandator’s reports to the League ofNations – a role that parallels a UN Special Rapporteur today. Suchprimary documents contain precedents for security fences and testify totheir non-political nature.

The International Court of Justice shows an avid interest in the “Mandate for Palestine” and uses the Mandate document to openlychampion a Palestinian state, but the ICJ also chooses to ignore evidenceof the ‘un-readiness’ of Palestinian Arabs for independence – a politicalmaturity that it quotes in the opinion is a prerequisite for politicalindependence under Article 22 of the League of Nations. Far morecrucial to the case, such documents note the necessity of security barriersin the past and demonstrate that in the context of the Arab-Israeli conflict, indeed, security barriers are temporary in nature.This statement undermines the Bench’s opinion that Israel’s securityfence is political and illegal.

The Bench finds it convenient to ignore that the mandate system speaksof readiness for independence in terms of signs of local responsible

A R A B C O N S I S T E N T B E H AV I O R A N D P R E C E D E N T F O R F E N C I N G


governance. Article 22 of the League of Nation’s Charter speaks ofreaching “a stage of development” that is provisional “until such time asthey are able to stand alone.” This yardstick was applied to Lebanon,Iraq, and Syria. By contrast, this ICJ considers Palestinian statehood tobe a ‘given’ – irrespective of Palestinian political behavior.

Ironically, the same political behavior (the use of terrorism as a politicalinstrument) that the ICJ chooses to ignore as irrelevant, is chronicled inofficial reports to the Council of the League of Nations filed by theBritish Government during its nearly three-decade rule over Palestine’sArab and Jewish inhabitants.1 Such reports from the British Governmentto the Council of the League of Nations were required of the Mandatorin the terms of the “Mandate for Palestine” in Article 24 it requires that:

“The Mandatory shall make to the Council of the League of Nations anannual report to the satisfaction of the Council as to the measures takenduring the year to carry out the provisions of the mandate. Copies of all laws and regulations promulgated or issued during the year shall becommunicated with the report.”2

Logically, such documents and other special reports to the League by theMandator should be of equal weight, in terms of standing and credibility,with the reports by the UN Special Rapporteur today, such as the oneupon which the ICJ opinion says it relies. These reports, as well as thefindings of international commissions such as the Anglo-AmericanCommittee of Enquiry,3 could have provided a valuable perspective forthe ICJ and placed the current terrorism dilemma in its appropriatehistorical context.


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1 Report by His Majesty’s Government in the United Kingdom of Great Britain andNorthern Ireland to the Council of the League of Nations on the Administration ofPalestine, and by the “Palestine Royal Commission” 1936-1937.

2 See: Appendix A. “Mandate for Palestine.” 3 Report of the Anglo-American Committee of Enquiry Regarding the Problem of

European Jewry and Palestine. Lausanne, April 20 1946.


Is the fence a security measure?

Most importantly, the reports are highly relevant in determiningwhether the fence is a security measure or a political ploy. The ICJ couldhave learned something about the need for a security fence from theMandate Report of 1930 (p. 169) which noted, after Arabs razed theJewish farming village of Beer-Tuvia to the ground and attacked ancientJewish communities in Hebron, Safed and elsewhere in 1929:

“For the greater security of exposed Jewish settlements, the [Jewish] Agency,in co-operation with the [British] Administration, has allotted £P.36,500 toroads, telephones, central buildings and fencing” [italics by author].

Seventeen years later, in 1946, the Anglo-American Committee ofEnquiry described again the need for security fences in the face ofrenewed Arab violence against Jews in 1936-39:

“The sudden rise of [Jewish] immigration after the Nazi seizure of power hadas its direct result the three and a half years of Arab revolt, during which theJew had to train himself for self-defence, and to accustom himself to the lifeof a pioneer in an armed stockade. … The high barbed wire and thewatchtowers, manned by the settlement police day and night, strike the eyeof the visitor as he approaches every collective [Jewish] colony. … The Jewsin Palestine are convinced that Arab violence paid. Throughout the Arabrising, the Jews in the National Home, despite every provocation, obeyed theorders of their leaders and exercised a remarkable self-discipline. They shot, butonly in self-defence; they rarely took reprisals on the Arab population”4 [italicsby author].

Not one but two historical precedents (1929 and 1936-39) support theIsraeli claim that its fencing is not necessarily political or permanent, butis instead a measure prompted by legitimate security needs. Indeed, thestockade walls and watchtowers that surrounded isolated civilian Jewishsettlements in the latter part of the 1930s and protected them fromattacks were dismantled when the 1936-39 Arab Revolt subsided. This


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4 Ibid.


challenges the Court’s conclusion that the fence is political “de factoannexation” and unilaterally changes the status of parts of the WestBank, all without any reference to law.

The Report by His Majesty’s Government in the United Kingdom ofGreat Britain and Northern Ireland to the Council of the League ofNations on the Administration of Palestine and the Palestine RoyalCommission 1936-1937 testifies to the fact that there is no linkagebetween terrorism and “occupation” and the use of violence thatrequired building security fences is not new. Unfortunately, these aresalient features on the landscape that repeat themselves due to theviolence deeply embedded in Palestinian political culture. The onlydifference is that the ‘shoe is on the other foot’ in terms of ‘who is fencedin,’ the potential victims or the perpetrators.

The above Mandator’s report definitively cites its corroborativeevidence:

“There were similar assaults [by the Arabs] on the persons and property ofthe Jews, conducted with the same reckless ferocity. Women and childrenwere not spared. ... In 1936 this was still clearer. Jewish lives were taken andJewish property destroyed. ... The word ‘disturbances’ gives a misleadingimpression of what happened. It was an open rebellion of the PalestinianArabs, assisted by fellow Arabs from other countries, against BritishMandatory rule. Throughout the strike the Arab press indulged inunrestrained invective against the [British] Government. The [British]Government imprisons and demolishes [houses] and imposes extortionatefines in the interests of imperialism.”5

The British report to the League of Nations had no problem using the‘T’ word or acknowledging the sustaining character of political violencein Palestinian Arab culture – internal and external, noting:

“The ugliest element in the picture remains to be noted. Arab nationalism inPalestine has not escaped infection with the foul disease which has so oftendefiled the cause of nationalism in other lands. Acts of ‘terrorism’ in various


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5 British National Archive, Palestine Royal Commission report, July 1937, Chapter IV, p. 104.


parts of the country have long been only too familiar reading in the newspapers. As in Ireland in the worst days after the War or in Bengal,intimidation at the point of a revolver has become a not infrequent featureof Arab politics. Attacks by Arabs on Jews, unhappily, are no new thing. Thenovelty in the present situation is attacks by Arabs on Arabs. For an Arab tobe suspected of a lukewarm adherence to the nationalist cause is to invite avisit from a body of ‘gunmen.’”6

The British report to the League of Nations noted Palestinian Arabs’“refusal to negotiate.”

“The Arab leaders had refused to co-operate with us [E.H., British] in oursearch for a means of settling the [E.H., Arab-Jewish] dispute.”7

The British report to the League of Nations noted the hate that fueledPalestinian Arab political culture:

“… Palestine Arab nationalism is inextricably interwoven with antagonism tothe Jews. ... That is why it is difficult to be an Arab patriot and not to hate theJews” [italics by author].

“…We [E.H., the British] find ourselves reluctantly convinced that noprospect of a lasting settlement can be founded on moderate Arab nationalism.At every successive crisis in the past that hope has been entertained. In eachcase it has proved illusory”8 [italics by author].

The British report to the League of Nations noted the destructive role ofPalestinian Arab leadership:

“If anything is said in public or done in daylight against the known desiresof the Arab Higher Committee, it is the work not of a more moderate, but amore full-blooded nationalism than theirs [AHC]”9 [italics by author].


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6 Ibid. Chapter V, Paragraph 45, p. 135.7 Ibid. Chapter V, “The Present Situation”, Paragraph 1, p. 113. 8 Ibid. Chapter V, “3. Arab Nationalism”, Paragraph 37, p. 131.9 Ibid. Chapter V, Paragraph 39, p. 132.



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12 Self-Determination

Does the democratic and free world need a rogue state that:

“… puts a high priority on subverting other states and sponsoring non-conventional types of violence against them. It does not react predictably todeterrence or other tools of diplomacy and statecraft.”1

The ICJ opinion cites the right to self-determination as a fundamentalright almost two dozen times, always in the Palestinian context, never inthe Jewish framework.

The Bench even takes the liberty to interpret what Israel’s recognition of“Palestinian rights” in a legally-binding accord (Camp David) meant, allwith no reliance on law. The ICJ says in paragraph 118 of the Opinion:

“The Israeli-Palestinian Interim Agreement on the West Bank and the GazaStrip of 28 September 1995 also refers a number of times to the Palestinianpeople and its ‘legitimate rights’ … The Court considers that those rightsinclude the right to self-determination, as the General Assembly has more-over recognized on a number of occasions (see, for example, resolution58/163 of 22 December 2003).”

S E L F - D E T E R M I N A T I O N

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1 Barry Rubin, “US Foreign Policy and Rogue States,” MERIA, September 1999, at:http://www.biu.ac.il/SOC/besa/meria/journal/1999/issue3/jv3n3a7.html.(11389)



Again, the ICJ turns General Assembly recognition – this time aDecember 2003 Resolution recognizing “The right of Palestinian peopleto self-determination”2 – into the basis for a legal opinion, ignoring thepowers vested (or not vested, as the case may be) in the GeneralAssembly under the UN Charter.

It is instructive to compare such ‘instant recognition’ to the way theJewish people’s right to self-determination, totally ignored by the ICJ,was anchored in a series of genuine international accords.

The British objectives in ‘mentoring a national home for the Jewishpeople’ under the Mandate for Palestine were not based solely on the1917 Balfour Declaration. While international support for the establish-ment of a Jewish homeland in Palestine was set in motion by thislandmark British policy statement, international intent rested on a solidconsensus, expressed in a series of accords and declarations that reflect-ed the ‘will’ of the international community, hardly the product or whimof a colonial empire with its own agenda.

The Mandate itself notes this intent when it cites that the Mandate isbased on the agreement of the Principal Allied Powers and declares:

“Whereas recognition has therefore been given to the historical connection ofthe Jewish people with Palestine and to the grounds for reconstituting theirnational home in that country” [italics by author].

A June 1922 letter from the British Secretary of State for the Colonies,Winston Churchill, reiterated that:

“…the [Balfour] Declaration of 1917 [was] re-affirmed by the Conference ofthe Principle Allied Powers at San Remo and again in the Treaty of Sevres …the Jewish people … is in Palestine as a right and not on sufferance. That isthe reason why it necessary that the existence of a Jewish National Home inPalestine should be internationally guaranteed, and that it should be formallyrecognized to rest upon ancient historical connection.”


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2 UN General Assembly – 58/163. A/RES/58/163. 77th plenary meeting. December 222003. The right of the Palestinian people to self-determination. See: http://www.mefacts.com/cache/html/un-resolutions/11319.htm. (11319)



In the first Report of The High Commissioner on the Administrationof Palestine 1920-1925 to the Secretary of State for the Colonies,published in April 1925, the most senior official of the Mandate forPalestine, the High Commissioner for Palestine, underscored how“international guarantee[s]” for the existence of a Jewish National Homein Palestine were achieved:

“The Declaration was endorsed at the time by several of the AlliedGovernments; it was reaffirmed by the Conference of the Principal AlliedPowers at San Remo in 1920; it was subsequently endorsed by unanimousresolutions of both Houses of the Congress of the United States; it wasembodied in the Mandate for Palestine approved by the League of Nationsin 1922; it was declared, in a formal statement of policy issued by theColonial Secretary in the same year, ‘not to be susceptible of change’; and ithas been the guiding principle in their direction of the affairs of Palestine offour successive British Governments. The policy was fixed and internationallyguaranteed.”

One may also note the Report of The High Commissioner on theAdministration of Palestine to the Right Honourable L. S. Amery, M.P.,Secretary of State for the Colonies’ Government Offices in April 221925, describing Jewish peoplehood:

“During the last two or three generations the Jews have recreated in Palestinea community, now numbering 80,000, of whom about one-fourth arefarmers or workers upon the land. This community has its own politicalorgans, an elected assembly for the direction of its domestic concerns, electedcouncils in the towns, and an organisation for the control of its schools. Ithas its elected Chief Rabbinate and Rabbinical Council for the direction ofits religious affairs. Its business is conducted in Hebrew as a vernacularlanguage, and a Hebrew press serves its needs. It has its distinctive intellectuallife and displays considerable economic activity. This community, then, withits town and country population, its political, religious and socialorganisations, its own language, its own customs, its own life, has in fact‘national’ characteristics.

“When it is asked what is meant by the development of the Jewish NationalHome in Palestine, it may be answered that it is not the imposition of aJewish nationality upon the inhabitants of Palestine as a whole, but thefurther development of the existing Jewish community, with the assistance ofJews in other parts of the world, in order that it may become a centre inwhich the Jewish people as a whole may take, on grounds of religion and


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race, an interest and a pride. But in order that this community should havethe best prospect of free development and provide a full opportunity for theJewish people to display its capacities, it is essential that it should know thatit is in Palestine as of right and not on sufferance. That is the reason why itis necessary that the existence of a Jewish National Home in Palestine shouldbe internationally guaranteed, and that it should be formally recognised torest upon ancient historic connection.”

Eleven successive British governments, Labor and Conservative, from David Lloyd George (1916-1922) through Clement Attlee (1945-1952) viewed themselves as duty-bound to fulfill the Mandate forPalestine placed in the hands of Great Britain by the League of Nations.3

This is a far cry from the instant approval noted in the UN’s GeneralAssembly upon which the ICJ bases its findings, totally ignoring that atno point in the Mandate for Palestine is there any granting of politicalrights to non-Jewish entities (i.e., Arabs), only civil and religious rights(discussed in Chapter 2), because political rights to self-determination asa polity for Arabs were guaranteed in three other parallel mandates forArab peoples, initially in Lebanon, Syria, and Iraq. The area east of theJordan River was later cut away from the area of historical Palestine tocreate an additional Arab state, Trans-Jordan, known today as Jordan.

There is one more point that should be mentioned at this juncture: theICJ’s highly irregular perception of peoplehood, eligibility and readinessfor self-determination. In paragraph 118 the ICJ says:

“As regards the principle of the right of peoples to self-determination, theCourt observes that the existence of a ‘Palestinian people’ is no longer inissue. … The Israeli-Palestinian Interim Agreement on the West Bank andthe Gaza Strip of 28 September 1995 (Oslo II Accords) also refers a numberof times to the Palestinian people and its ‘legitimate rights.’”

Making its judgment, the ICJ concludes:

“The Court considers that those rights include the right to self-determination,as the General Assembly has moreover recognized on a number of occasions.”


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3 See http://www.direct.gov.uk/Homepage/fs/en.


Historically, before the Arabs fabricated the ‘Palestinian people’ as anexclusively Arab phenomenon, no such group existed. This is substan-tiated in countless official British Mandate vintage documents thatspeak of ‘the Jews’ and ‘the Arabs’ of Palestine – not ‘Jews andPalestinians.’ Even the United Nations’ 1947 “Partition Plan” recommend-ed the establishment of “Arab and Jewish states,” not a ‘Palestinian’ andJewish states.

In fact, the first Article of the PLO Charter makes it clear that‘Palestinian people’ are ordinary Arabs:

“Article 1: Palestine is the homeland of the Arab Palestinian people; it is anindivisible part of the Arab homeland, and the Palestinian people are an integralpart of the Arab nation” 4 [italic by author].

Professor Rostow, examining the claim for Palestinian’s self-determination on the bases of law, concludes:

“… the mandate implicitly denies Arab claims to national political rights inthe area in favor of the Jews; the mandated territory was in effect reserved tothe Jewish people for their self-determination and political development, inacknowledgment of the historic connection of the Jewish people to the land.Lord Curzon, who was then the British Foreign Minister, made this readingof the mandate explicit. There remains simply the theory that the Arabinhabitants of the West Bank and the Gaza Strip have an inherent ‘naturallaw’ claim to the area.

“Neither customary international law nor the United Nations Charteracknowledges that every group of people claiming to be a nation has the rightto a state of its own.”5


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4 See Appendix G. The PLO Charter.5 Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies,

November 1993. See also his writing: “Are Israel’s Settlements Legal?” The New Republic,October 21 1991.



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13 The International Courtof Justice’s Mandate

Article 38 of the ICJ’s own Statute instructs the Bench what input is tobe applied in adjudicating cases in its Docket.1 Article 38 clarifies:

“1. The Court, whose function is to decide in accordance with internationallaw such disputes as are submitted to it, shall apply:

“a. international conventions, whether general or particular, establishingrules expressly recognized by the contesting states;

“b. international custom, as evidence of a general practice accepted as law;

“c. the general principles of law recognized by civilized nations;

“d. subject to the provisions of Article 59, judicial decisions and theteachings of the most highly qualified publicists of the various nations, assubsidiary means for the determination of rules of law.”

T H E I N T E R N A T I O N A L C O U R T O F J U S T I C E ’ S M A N D A T E

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1 Statute of the International Court of Justice. See http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm. (10485)



Throughout this critique of the ICJ’s performance of its duties, theBench has been found time after time to be biased in its application ofthe above-mentioned foundations of international law.

1(a) International Conventions: The Bench applies internationalconventions that are applicable and inapplicable, while ignoring othersthat are highly relevant, demonstrating a total disregard of the UN’s ownlegal machinery by treating General Assembly resolutions as if they werelegally valid and/or legally binding documents.

It is not even clear whether international conventions are admissible asevidence in an Advisory Opinion. The wording of Article 38 views asadmissible only “international conventions, whether general orparticular … expressly recognized by the contesting states.” This seemsto indicate that in terms of fair use, the ICJ is mandated to use onlygeneral conventions such as the Hague and Geneva Conventions andthe human rights conventions cited by the ICJ (as well as equallyrelevant ones the ICJ chose not to cite) only in cases where the ICJ issitting in the capacity of an arbitrator between two sides where both sideshave accepted its jurisdiction. Therefore, use of general conventionsmight not apply when the ICJ has been asked for an advisory opinion –all the more so because Israel, the only “state” in the case, clarified in itsbrief to the ICJ that it did not accept the court’s jurisdiction.

1(b) International Custom: The Bench often perverts the generalprinciples of law – the core elements which include reasonableness, goodfaith and the principle of proportionality, components that are highlyrelevant to the case at hand, which pits Palestinian rights against Israelirights.

Furthermore, the rules of war enshrined in the Hague (1907) andGeneva Conventions (1949) did not envision terrorism as a major form


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of warfare.2 Until a comprehensive use of convention or protocol onterrorism is established and takes force, countries like America thatrespect the rule of law have taken the lead to fill the void by defining anew category for such terrorists – ‘illegal combatants.’ This category, theUnited States argues, recognizes that one cannot abridge all the rules of warfare by targeting civilians and then expect to enjoy the privilegesof POWs under the same conventions. The ICJ prefers to adhere rigidlyto outdated definitions that hardly reflect current realities aboutterrorism.

Security barriers in other disputed territories.

Moreover, Israel is not the only country in the world with a securitybarrier in disputed territory. If the ICJ has been requested to examinethe legality and the ramifications of the Israeli barrier and if realities inSouth West Africa (Namibia) are considered by the ICJ to be relevant tothe case at hand, then logically the legality and ramifications of a barrierjust up the coast in Western Sahara and also built inside disputedterritory would be relevant to the case. Israel is not only singled out in theGeneral Assembly request, but also by the ICJ, which exhibits nointerest in even noting the existence of precedents or using them as ayardstick of proportionality.

The two most outstanding cases are Morocco (in the disputed territoryof the Western Sahara) and India (in the disputed territory of Kashmir).In 1982, Morocco began building a 1,500 kilometer-long defensive wallto protect its settlers and military personnel against Polisario guerrillas –members of the Saharawi tribes who claimed title to the Western Saharaand demanded self-determination. Morocco claims the Western Saharais an integral part of pre-colonial Morocco. The barrier consists of aseries of berms (3 meter high sand walls) deep inside the disputed


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2 Amnon Straschnov, “Israel’s Commitment to Domestic and International Law in Times ofWar,” JCPA, October 10 2004, at: http://www.jcpa.org/brief/brief4-5.htm. (11390)



territory – each between 300 – 670 kilometers in length, seeded with anestimated 200,000 to one million3 anti-personnel and anti-vehicle minesplanted in a 100 meter-wide strip on the ‘enemy’ side of Morocco’ssecurity barrier.4

In the late 1980s, India began building a security fence to protect itselffrom Sikh separatists supported by Pakistan; the barrier runs the fulllength of India’s Rajasthan and Punjab states. In 2003, in the wake ofcross-border attacks into the Indian sector of the disputed territory ofKashmir by Islamic terrorists, India began extending the existing 8-foothigh mud wall with a 3-tier maze of barbed-wire5 into the disputedterritory, along a route that runs deep inside Kashmir. The planned1,800 mile security fence, like Israel’s, is non-lethal – comprised of steelposts set into concrete blocks and strung up with concertina wire.

1(c) General Principles of Law of Civilized Nations: It is hard to justify theICJ’s failing to even discuss crimes against humanity, such as systematictargeting of civilians by suicide bombers, or the Court’s failure toconsider the human rights conventions it quotes as being equallyapplicable to Jews and Arabs.

The instructions to the ICJ that it apply the “general principles of law ofcivilized nations” raises a far more fundamental question, a matter ofpropriety. Common decency should have led this ICJ Bench to at least barthose with blood on their hands from participating in such a procedure.


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3 Estimates vary between 200,000 and one million mines. See “Landmines – A Threat StillLingering,” at: http://wsahara.net/landmines.html. (11391)

4 “Desert Dreams, Saharan Nightmares: Morocco, Polisario and the Struggle for WesternSahara” at: http://www.wibemedia.com/sahara.html (11392) for general information anduse of mining as a part of the barrier see: http://www.icbl.org (11393) andhttp://www.icbl.org/lm/2002/western_sahara/. (11394)

5 Rama Lakshmi, “India’s Border Fence Extended to Kashmir,” The Washington Post, July 302003 at: http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A64700-2003Jul29&notFound=true. (11464)



Legal scholar Professor Stone, writing about Palestinian attempts toresurrect the “Partition Plan” (discussed in Chapter 4), wrote:

“… there are also certain other legal grounds, rooted in basic notions ofjustice and equity, on which the Arab states (and the Palestinians whom theyrepresented in these matters) should not, in any case, be permitted, after solawless a resort to violence against the plan, to turn around decades later, andclaim legal entitlements under it. More than one of ‘the general principles oflaw’ acknowledged in Article 38(1)(c) of the Statute of the International Courtof Justice seem to forbid it. Such claimants do not come with ‘clean hands’ toseek equity; their hands indeed are mired by their lawlessly violent bid todestroy the very resolution and plan from which they now seek equity …”6

If this is so, it is hard to ignore the relevance of “clean hands” in theeligibility of Palestine to seek redress from the ICJ, or at least for bodiessuch as the PLO, Fateh, the Arab League and the Conference of IslamicStates who champion and sanction violence, to aid the ICJ by “furnishingit with information.” If this doesn’t violate “basic notions of justice andequity,” then barring Israeli victims from testifying surely does.

The ICJ did not consider it fitting and proper to invite the Organizationof Casualties of Terror Acts in Israel (Almagor) to present evidence underthe ‘catch-all’ Article 66 Clause 2 of its Charter invoked to listen to theArab League. The request on the part of Israeli terror victims’ families toparticipate in oral hearings was rejected by the ICJ on the grounds thatthe families do not represent a country and therefore should not takepart in the hearings.7

1(d) Judicial decisions: “Judicial decisions and the teachings of the mosthighly qualified publicists of the various nations,” … [to] determinerules of law.


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6 Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The JohnsHopkins University Press, 1981, p. 127.

7 “ICJ rejects terror victim’s families participation,” The Jerusalem Post, February 21 2004 at:http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/Printer&cid=1077351468319. (11486)



The Bench not only ignores the relevant rulings of the Supreme Courtof the State of Israel that could contribute to its own investigation oflegality and proportionality, but also ignores the writings of the formerpresident of the Court, Judge Schwebel, who wrote specifically to thisissue:

“International law is largely the creation of Governments. In that creativeprocess, those who render legal advice to Governments play a critical part (inpresent case the Supreme Court of the State of Israel). The forces whichshape international law, like the forces which shape international affairs, aremany and complex. But what is singular and clear is that those who adviseGovernments on what international law is and should be exert a particular,perhaps at times a paramount, influence on the formation of internationallaw.”8

The ICJ cannot consider declarations and resolutions ofthe UN General Assembly as customary internationallaw.

To understand what the ICJ cannot do, it is instructive to review thelanguage used during the debate of the defeated draft resolution thatattempted to allow the ICJ to consider declarations and resolutions of theUN General Assembly as if they were customary international law:

“Complete imbalance” is what Professor Stone describes as “arising from theentry of scores of new states into the United Nations who promoteresolutions in the General Assembly reflecting political, economic, orsociological aspirations rather than a responsible assessment of the relevantlegal issues and considerations. It would greatly enhance the dangers inherentin this imbalance in the United Nations if the above illusion werethoughtlessly indulged.”


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8 Professor, Judge Stephen M. Schwebel, Government Legal Advising in the Field of ForeignAffairs in Justice in International Law, Cambridge University Press, 1994. Opinions quot-ed in this critiques are not derived from his position as a judge of the ICJ.


Professor Stone continues to describe the 1974 rejected attempt to over-empower the ICJ:

“At the 1492d meeting of the General Assembly’s Sixth Committee, onNovember 5, 1974. … The Committee had before it a draft resolution onthe role of the International Court of Justice, the preamble of which referredvaguely in its eighth paragraph to the possibility that the court might takeinto consideration declarations and resolutions of the General Assembly. Awide spectrum of states, including Third World, Soviet bloc, and Westernstates, rejected even this indecisive reference. It was, some said, an attempt at‘indirect amendment’ of Article 38 of the Statute of the International Court,a ‘subversion of the international structure of the United Nations.’”9

The International Court of Justice lacks the authority toissue a directive to Member States, a function reservedsolely to the Security Council.

In paragraph 163 (3)D, the Opinion states:

“All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistancein maintaining the situation created by such construction; all States parties


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9 (Mr. Sette Camara [Brazil] United Nations General Assembly [U.N.G.A.] A/C6/SR1492,p. 166, with whom U.S. representative Rosenstock agreed on this point). It contradictedthe U.N. Charter and the court Statute, so that on a separate vote the Soviet Union wouldnot have supported it (Mr. Fedarov, Union of Soviet Socialist Republics, ibid., p. 167). Itwas capable of meaning that “General Assembly resolutions could themselves developinternational law” (Mr. Steel, for United Kingdom, ibid., p. 167). It was “inappropriate inthe light of Article 38” of the Court’s Statute (Mr. Guney, Turkey, ibid., p. 168). It wassubject to “serious doubts” (Mrs. Ulyanova, Ukraine, ibid., p. 168). It was an attempt to“issue directives regarding the sources of law,” departing from his delegation’s view thatresolutions and declarations of the General Assembly are “essentially recommendations andnot legally binding” (Mr. Yokota, Japan, ibid., p. 168). Mr. Rasoloko, Byelorussia, declaredroundly (ibid., p. 169) that “declarations and resolutions of the General Assembly couldnot be sources of international law”; and Mr. Prieto, Chile (ibid., p. 169) added that theycould not be so considered “particularly in view of their increasing political content whichwas often at variance with international law.” The eighth paragraph, it was also objected,attributed to the General Assembly “powers which were not within its competence” (Mr.Foldeak, Hungary, ibid., p. 169). Also, the preambular paragraph in question had alreadybeen amended at the instance of Mexico in a sense explained as in no way altering orintroducing any new source of international law to those enumerated in Article 38 of theStatute of the International Court of Justice (A/C6/L 989).


to the Fourth Geneva Convention relative to the Protection of CivilianPersons in Time of War of 12 August 1949 have in addition the obligation,while respecting the United Nations Charter and international law, to ensurecompliance by Israel with international humanitarian law as embodied inthat Convention;”

Such a directive goes beyond the authority of the Court on three counts.First, no directive was requested of the Court by the UN GeneralAssembly. The Court decided on its own to ‘rule’ on the legality ofJewish settlements in Section 120 (see Chapter 9). Secondly, the Court’spowers under its own mandate do not include the right to issuedirectives to enforce its advisory opinion. Just as General Assembly’s res-olutions are only recommendations, the Court’s Advisory Opinion isalso void of any legislative or coercive power and is no more than coun-sel or advice. Thirdly, adoption and enforcement of the ICJ’s advice issolely the prerogative of the Security Council, the only UN organ withthe power under the UN Charter to ‘direct’ or ‘obligate’ Member Stateson how to act.

Here again, the Court’s behaviour seems to be a sheer ‘power grab’reflecting the Bench’s own aspirations to assume prerogatives reservedsolely for the Security Council, in order to bring the ICJ’s own powersinto parity with those of the Security Council.


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14 Epilogue

The International Court of Justice ignored not only its own Statute butalso the writings of eminent jurists and academic scholars of inter-national law, members of its own Bench, including a past president ofthe ICJ, all of whom are uniquely qualified and experienced on thesubject at hand. Among them: Professor and Judge Stephen M.Schwebel, past president of the ICJ; Sir Gerald Fitzmaurice, former ICJjudge; Judge Sir Hersch Lauterpacht, a former member judge of theInternational Court; Judge Sir Elihu Lauterpacht, judge ad hoc of theInternational Court of Justice; former British Ambassador to the UN,Lord Caradon, principal author of draft Resolution 242; Professor JuliusStone, one of the twentieth century’s leading authorities on the Law ofNations; Professor Eugene V. Rostow, dean of the Yale Law School, U.S.Under-Secretary of State for Political Affairs, and a key draftee of UNResolution 242; Professor and Jurist Arthur J. Goldberg, member of theU.S. Supreme Court, and U.S. Ambassador to the UN in 1967 and akey draftee of Resolution 242; and Professor George P. Fletcher, facultymember of the Columbia University School of Law, who wrote recentlythat Kofi Annan’s use of the phrase “‘illegal occupation’ is a perilousthreat to the diplomatic search for peace.”

1

E P I L O G U E

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1 Professor George Fletcher, an expert in international law at Columbia University School of Law andauthor of “Romantics at War: Glory and Guilt in the Age of Terrorism.” See “Annan’s CarelessLanguage,” The New York Times, March 21 2002. (10327)



In contradiction to international law, scholarly judgment, and commonsense, the International Court of Justice handed down an ‘AdvisoryOpinion’ that is:

So sloppy that it wants the reader to believe that the League of Nationsdocument – the 1922 “Mandate for Palestine” that laid down the Jewishlegal right to settle anywhere in the area between the Jordan River andthe Mediterranean Sea, an entitlement unaltered in international lawand valid to this day – was the founding document for Palestinian self-determination. It seems that the members of the Court didn’t evenbother to read the six-page legally-binding Mandate for Palestinedocument.

So biased that it found terrorist activities to be irrelevant to its judicialinvestigation. The ICJ that cites the Secretary-General’s Report as a keydocument and a major source of information for its opinion, skips thepart of the same UN Report that labeled the Palestinian actions “terror,”clearly stating the cause for building a security barrier.

So incompetent that it demonstrates a total disregard of the UN’s ownlegal machinery by arbitrarily treating numerous General AssemblyResolutions and Declarations as a source of law, contradicting the UNCharter and the Court’s Statute.2

So devious that it erases all Arab aggression during the British Mandateperiod (1922-1948), the 1948, 1956, 1967 and 1973 wars, and Israel’scontinuing fight of self-defence against Palestinian terrorism.

So manipulative that it denied Israel’s rights to battle terrorism asdirected by Security Council Resolution 1373 that was adopted underChapter VII of the UN Charter and required all nations to comply withthe terms set forth in Resolutions 1373, 1368, and 1269. The ICJ doesnot have the authority or the power over the Security Council to alterthe resolution or wrongly and illegally exclude Israel, a Member State ofthe UN, from its rights and obligations under such Security CouncilResolutions.


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2 “… at the 1492d meeting of the General Assembly’s Sixth Committee, on November 5 1974.” Seefootnote 9 on page 147.


ICJ – Challenging the power of UN Security Council.

In another odd conclusion, the ICJ ‘found’ in this case a “failure of theSecurity Council to discharge its responsibilities”3 [E.H., without anyreference to law] then in defiance of the limited powers delegated to itby the UN Charter, by-passed the Security Council’s powers andresponsibilities.

Bypassing the Security Council is part of a broader campaign thatshould alarm all members of the Security Council, and the United Statesin particular. Nabil Elaraby, the Egyptian member of the ICJ Bench,openly advocated two main vehicles for institutionalizing it:

“The United Nations membership should, in my view, address ways andmeans to render the Security Council (a) accountable to the GeneralAssembly, and (b) subject to the possibility, however remote, of a judicialreview process.”4

And according to Gregory Khalil, the PLO legal advisor in the securitybarrier case, the ICJ consciously sought to engage the United States in a:

“… tango of mutual deterrence” and “chart a path for the internationalcommunity to counter the United States’ veto power.” The significance ofthe ruling cannot be overstated, he underscores: It challenges the power ofthe veto and the Security Council’s management of “threats to world peace,”using the International Court of Justice’s interpretations of the rule of inter-national law in matters of ‘threats to world peace’ coupled with claims thatthe international community is obliged to support its rulings and calling forsanctions – decisions that under Chapter VII of the UN Charter is the soleprerogative of the Security Council. Khalil calls this strategy “vetoing theveto.”5

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3 The Court cites UN GA Resolution 377 of November 3 1950 as its license to assume the SecurityCouncil Power. [E.H., The UN Charter vests no such power in GA Resolutions.] (11399)

4 Nabil Elaraby, “Some Reflections on The Role of the Security Council and the Prohibition of theUse of Force in International Relations: Article 2(4) Revisited in Light of Recent Developments,” 2003, at http://edoc.mpil.de/fs/2003/eitel/41_elaraby.pdf. (11449) Not a lone voice, the samesentiments are echoed in Ahmad Faiz bin Abdul Rahman, “The ICJ on Trial” at:http://www.iol.ie/~afifi/BICNews/Afaiz/afaiz21.htm, (11448) who in 1998 took the ICJ to task fornot “practice[ing] its powers of judicial review to the fullest extent” in the case brought by Libyaagainst the UK and the United States regarding jurisdiction in the Lockerbie case.

5 See Gregory Khalil, “Just Say No to Vetoes,” The New York Times, July 19 2004, at http://www.pngo.net/publications/articles/gregory_khalil190704en.htm. (11450)



The ‘Advisory Opinion’ signed by the Court’s president, Shi Jiuyong,6

constitutes “a profound corruption of its mission and one with seismicimplications for the future of international law.”7 It threatens thesecurity of America and its allies on three levels: first, in its ground-breaking attack on the ‘right to self-defence,’ proscribing an almostblanket prohibition of use of lawful force. Second, it erroneously adoptsthe exclusive powers granted to the Security Council by the UnitedNations Charter, a move that will render the Security Councilineffective, and third, in the willingness of the Bench to allow itschambers to become a political instrument and to abandon all semblanceof fairness or professionalism, all for political gain.

The threats to the free and democratic states, consequently demand a farmore serious, systematic and frank response, including a willingness tochallenge the competence of this Court. Attempts to shield theInternational Court of Justice from this disgrace out of concern for itsperceived reputation and effectiveness are short-sighted. At all too manyjunctures it appears that the ICJ’s conclusions are based solely on ‘gutfeelings’ and unsubstantiated assumptions – almost taking a leap of faithbased on a mixture of personal and collective prejudice and popularopinion.

The free and democratic world needs to ‘rein in’ the appetite of theGeneral Assembly and to demand of the International Court of Justiceto step beyond its mandate, and respect and obey international laws asset forth in the United Nations Charter.


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6 “The court president, Shi Jiuyong, hails from China, one of the more dictatorial regimes in the world… continues to deny basic political and religious rights, with large numbers of dissidents held in -prisons and labor camps for ‘crimes’ such as advocating free elections or practicing the Falun Gongreligion. Israel, needless to say, has complete freedom of speech and religion. And, while Israel wantsto annex only a small sliver of the West Bank, China has grabbed all of Tibet. But, with its veto powerat the U.N. Security Council, Beijing is able to shield itself from well-deserved international oblo-quy.” See: Andrew McCarthy, “The End of the Right of Self-Defense: Israel, the World Court, andthe War on Terror,” Commentary, November 1 2004 at: http://www.defenddemocracy.org/in_the_media/in_the_media_show.htm?doc_id=245738. (10447)

7 Ibid.



A P P E N D I X A – M A N D A T E F O R P A L E S T I N E

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LONDON:

PUBLISHED BY HIS MAJESTY’S STATIONARY OFFICE.

___________

LEAGUE OF NATIONS. – – – – – – – – –

MANDATE FOR PALESTINE,

TOGETHER WITH A

NOTE BY THE SECRETARY-GENERALRELATING TO ITS APPLICATION

TO THE

TERRITORY KNOWN AS TRANS-JORDAN,

under the provisions of Article 25.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Presented to Parliament by Command of His Majesty,December, 1922

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _



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MANDATE FOR PALESTINE, together with a Note by the Secretary-General relating to its

application to the Territory known as TransJordan, under the provisions of Article 25.___________________________MANDATE FOR PALESTINE._______________________________

The Council of the League of Nations :

Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provi-sions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected bythe said Powers the administration of the territory of Palestine, which formerly belonged to theTurkish Empire, within such boundaries as may be fixed by them; and

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsi-ble for putting into effect the declaration originally made on November 2nd, 1917, by theGovernment of His Britannic Majesty, and adopted by the said Powers, in favor of the establishmentin Palestine of a national home for the Jewish people, it being clearly understood that nothing shouldbe done which might prejudice the civil and religious rights of existing non-Jewish communities inPalestine, or the rights and political status enjoyed by Jews in any other country; and

Whereas recognition has thereby been given to the historical connection of the Jewish peoplewith Palestine and to the grounds for reconstituting their national home in that country; and

Whereas the Principal Allied Powers have selected His Britannic Majesty as the Mandatory forPalestine; and

Whereas the mandate in respect of Palestine has been formulated in the following terms andsubmitted to the Council of the League for approval; and

Whereas His Britannic Majesty has accepted the mandate in respect of Palestine and under-taken to exercise it on behalf of the League of Nations in conformity with the following provisions;and

Whereas by the afore-mentioned Article 22 (paragraph 8), it is provided that the degree ofauthority, control or administration to be exercised by the Mandatory, not having been previouslyagreed upon by the Members of the League, shall be explicitly defined by the Council of the Leagueof Nations;

confirming the said Mandate, defines its terms as follows:

Article 1.The Mandatory shall have full powers of legislation and of administration, save as they may be

limited by the terms of this mandate.


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Article 2.The Mandatory shall be responsible for placing the country under such political, administrative

and economic conditions as will secure the establishment of the Jewish national home, as laid downin the preamble, and the development of self-governing institutions, and also for safeguarding thecivil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.

Article 3.The Mandatory shall, so far as circumstances permit, encourage local autonomy.

Article 4.An appropriate Jewish agency shall be recognised as a public body for the purpose of advising

and co-operating with the Administration of Palestine in such economic, social and other matters asmay affect the establishment of the Jewish national home and the interests of the Jewish populationin Palestine, and, subject always to the control of the Administration to assist and take part in thedevelopment of the country.

The Zionist organization, so long as its organization and constitution are in the opinion of theMandatory appropriate, shall be recognised as such agency. It shall take steps in consultation withHis Britannic Majesty’s Government to secure the co-operation of all Jews who are willing to assistin the establishment of the Jewish national home.

Article 5.The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased

to, or in any way placed under the control of the Government of any foreign Power.

Article 6.The Administration of Palestine, while ensuring that the rights and position of other sections of

the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions andshall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement byJews on the land, including State lands and waste lands not required for public purposes.

Article 7.The Administration of Palestine shall be responsible for enacting a nationality law. There shall

be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenshipby Jews who take up their permanent residence in Palestine.

Article 8.The privileges and immunities of foreigners, including the benefits of consular jurisdiction and

protection as formerly enjoyed by Capitulation or usage in the Ottoman Empire, shall not be appli-cable in Palestine.

Unless the Powers whose nationals enjoyed the afore-mentioned privileges and immunities onAugust 1st, 1914, shall have previously renounced the right to their re-establishment, or shall haveagreed to their non-application for a specified period, these privileges and immunities shall, at theexpiration of the mandate, be immediately reestablished in their entirety or with such modificationsas may have been agreed upon between the Powers concerned.



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Article 9.The Mandatory shall be responsible for seeing that the judicial system established in Palestine

shall assure to foreigners, as well as to natives, a complete guarantee of their rights. Respect for the personal status of the various peoples and communities and for their religious

interests shall be fully guaranteed. In particular, the control and administration of Wakfs shall beexercised in accordance with religious law and the dispositions of the founders.

Article 10.Pending the making of special extradition agreements relating to Palestine, the extradition

treaties in force between the Mandatory and other foreign Powers shall apply to Palestine.

Article 11.The Administration of Palestine shall take all necessary measures to safeguard the interests of

the community in connection with the development of the country, and, subject to any internationalobligations accepted by the Mandatory, shall have full power to provide for public ownership orcontrol of any of the natural resources of the country or of the public works, services and utilitiesestablished or to be established therein. It shall introduce a land system appropriate to the needs ofthe country, having regard, among other things, to the desirability of promoting the close settlementand intensive cultivation of the land.

The Administration may arrange with the Jewish agency mentioned in Article 4 to construct oroperate, upon fair and equitable terms, any public works, services and utilities, and to develop anyof the natural resources of the country, in so far as these matters are not directly undertaken by theAdministration. Any such arrangements shall provide that no profits distributed by such agency,directly or indirectly, shall exceed a reasonable rate of interest on the capital, and any further profitsshall be utilised by it for the benefit of the country in a manner approved by the Administration.

Article 12.The Mandatory shall be entrusted with the control of the foreign relations of Palestine and the

right to issue exequaturs to consuls appointed by foreign Powers. He shall also be entitled to afforddiplomatic and consular protection to citizens of Palestine when outside its territorial limits.

Article 13.All responsibility in connection with the Holy Places and religious buildings or sites in

Palestine, including that of preserving existing rights and of securing free access to the Holy Places,religious buildings and sites and the free exercise of worship, while ensuring the requirements ofpublic order and decorum, is assumed by the Mandatory, who shall be responsible solely to theLeague of Nations in all matters connected herewith, provided that nothing in this article shall pre-vent the Mandatory from entering into such arrangements as he may deem reasonable with theAdministration for the purpose of carrying the provisions of this article into effect; and provided alsothat nothing in this mandate shall be construed as conferring upon the Mandatory authority to inter-fere with the fabric or the management of purely Moslem sacred shrines, the immunities of whichare guaranteed.

Article 14.A special commission shall be appointed by the Mandatory to study, define and determine the

rights and claims in connection with the Holy Places and the rights and claims relating to the differ-ent religious communities in Palestine. The method of nomination, the composition and the functionsof this Commission shall be submitted to the Council of the League for its approval, and theCommission shall not be appointed or enter upon its functions without the approval of the Council.


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Article 15.The Mandatory shall see that complete freedom of conscience and the free exercise of all forms

of worship, subject only to the maintenance of public order and morals, are ensured to all. No dis-crimination of any kind shall be made between the inhabitants of Palestine on the ground of race,religion or language. No person shall be excluded from Palestine on the sole ground of his religiousbelief.

The right of each community to maintain its own schools for the education of its own membersin its own language, while conforming to such educational requirements of a general nature as theAdministration may impose, shall not be denied or impaired.

Article 16.The Mandatory shall be responsible for exercising such supervision over religious or eleemosy-

nary bodies of all faiths in Palestine as may be required for the maintenance of public order and goodgovernment. Subject to such supervision, no measures shall be taken in Palestine to obstruct or inter-fere with the enterprise of such bodies or to discriminate against any representative or member ofthem on the ground of his religion or nationality.

Article 17.The Administration of Palestine may organist on a voluntary basis the forces necessary for the

preservation of peace and order, and also for the defence of the country, subject, however, to thesupervision of the Mandatory, but shall not use them for purposes other than those above specifiedsave with the consent of the Mandatory. Except for such purposes, no military, naval or air forcesshall be raised or maintained by the Administration of Palestine.

Nothing in this article shall preclude the Administration of Palestine from contributing to thecost of the maintenance of the forces of the Mandatory in Palestine. The Mandatory shall be entitled at all times to use the roads, railways and ports of Palestine for themovement of armed forces and the carriage of fuel and supplies.

Article 18.The Mandatory shall see that there is no discrimination in Palestine against the nationals of any

State Member of the League of Nations (including companies incorporated under its laws) as com-pared with those of the Mandatory or of any foreign State in matters concerning taxation, commerceor navigation, the exercise of industries or professions, or in the treatment of merchant vessels or civilaircraft. Similarly, there shall be no discrimination in Palestine against goods originating in or des-tined for any of the said States, and there shall be freedom of transit under equitable conditions acrossthe mandated area.

Subject as aforesaid and to the other provisions of this mandate, the Administration of Palestinemay, on the advice of the Mandatory, impose such taxes and customs duties as it may consider nec-essary, and take such steps as it may think best to promote the development of the natural resourcesof the country and to safeguard the interests of the population. It may also, on the advice of theMandatory, conclude a special customs agreement with any State the territory of which in 1914 waswholly included in Asiatic Turkey or Arabia.

Article 19.The Mandatory shall adhere on behalf of the Administration of Palestine to any general inter-

national conventions already existing, or which may be concluded hereafter with the approval of theLeague of Nations, respecting the slave traffic, the traffic in arms and ammunition, or the traffic indrugs, or relating to commercial equality, freedom of transit and navigation, aerial navigation andpostal, telegraphic and wireless communication or literary, artistic or industrial property.


Article 20.The Mandatory shall co-operate on behalf of the Administration of Palestine, so far as religious,

social and other conditions may permit, in the execution of any common policy adopted by theLeague of Nations for preventing and combating disease, including diseases of plants and animals.

Article 21.The Mandatory shall secure the enactment within twelve months from this date, and shall ensure

the execution of a Law of Antiquities based on the following rules. This law shall ensure equality oftreatment in the matter of excavations and archaeological research to the nationals of all StatesMembers of the League of Nations.

(1)“Antiquity” means any construction or any product of human activity earlier than the year A.

D. 1700.

(2)The law for the protection of antiquities shall proceed by encouragement rather than by threat. Any person who, having discovered an antiquity without being furnished with the authorization

referred to in paragraph 5, reports the same to an official of the competent Department, shall berewarded according to the value of the discovery.

(3)No antiquity may be disposed of except to the competent Department, unless this Department

renounces the acquisition of any such antiquity. No antiquity may leave the country without an export licence from the said Department.

(4)Any person who maliciously or negligently destroys or damages an antiquity shall be liable to

a penalty to be fixed.

(5)No clearing of ground or digging with the object of finding antiquities shall be permitted, under

penalty of fine, except to persons authorised by the competent Department.

(6)Equitable terms shall be fixed for expropriation, temporary or permanent, of lands which might

be of historical or archaeological interest.

(7)Authorization to excavate shall only be granted to persons who show sufficient guarantees of

archaeological experience. The Administration of Palestine shall not, in granting these authoriza-tions, act in such a way as to exclude scholars of any nation without good grounds.

(8)The proceeds of excavations may be divided between the excavator and the competent

Department in a proportion fixed by that Department. If division seems impossible for scientific rea-sons, the excavator shall receive a fair indemnity in lieu of a part of the find.

Article 22.English, Arabic and Hebrew shall be the official languages of Palestine. Any statement or

inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew and any statementor inscription in Hebrew shall be repeated in Arabic.


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159


Article 23.The Administration of Palestine shall recognise the holy days of the respective communities in

Palestine as legal days of rest for the members of such communities.

Article 24.The Mandatory shall make to the Council of the League of Nations an annual report to the

satisfaction of the Council as to the measures taken during the year to carry out the provisions of themandate. Copies of all laws and regulations promulgated or issued during the year shall be commu-nicated with the report.

Article 25.In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately

determined, the Mandatory shall be entitled, with the consent of the Council of the League ofNations, to postpone or withhold application of such provisions of this mandate as he may considerinapplicable to the existing local conditions, and to make such provision for the administration of theterritories as he may consider suitable to those conditions, provided that no action shall be takenwhich is inconsistent with the provisions of Articles 15, 16 and 18.

Article 26.The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and

another member of the League of Nations relating to the interpretation or the application of the pro-visions of the mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to thePermanent Court of International Justice provided for by Article 14 of the Covenant of the Leagueof Nations.

Article 27.The consent of the Council of the League of Nations is required for any modification of the

terms of this mandate.

Article 28.In the event of the termination of the mandate hereby conferred upon the Mandatory, the

Council of the League of Nations shall make such arrangements as may be deemed necessary forsafeguarding in perpetuity, under guarantee of the League, the rights secured by Articles 13 and 14,and shall use its influence for securing, under the guarantee of the League, that the Government ofPalestine will fully honour the financial obligations legitimately incurred by the Administration ofPalestine during the period of the mandate, including the rights of public servants to pensions or gra-tuities.

The present instrument shall be deposited in original in the archives of the League of Nationsand certified copies shall be forwarded by the Secretary-General of the League of Nations to allmembers of the League.

Done at London the twenty-fourth day of July, one thousand nine hundred and twenty-two.

Certified true copy:

FOR THE SECRETARY-GENERAL,RAPPARD,

Director of the Mandates Section.


NOTE.

_____

GENEVA,September 23rd, 1922.

ARTICLE 25 OF THE PALESTINE MANDATE.Territory known as Trans-Jordan.

NOTE BY THE SECRETARY-GENERAL.

The Secretary-General has the honour to communicate for the information of theMembers of the League, a memorandum relating to Article 25 of the Palestine Mandatepresented by the British Government to the Council of, the League on September 16th,1922.

The memorandum was approved by the Council subject to the decision taken at itsmeeting in London on July 24th, 1922, with regard to the coming into force of thePalestine and Syrian mandates.

____________

MEMORANDUM BY THE BRITISH REPRESENTATIVE.

1. Article 25 of the Mandate for Palestine provides as follows:-“In the territories lying between the Jordan and the eastern boundary of Palestine as

ultimately determined, the Mandatory shall be entitled, with the consent of the Council ofthe League of Nations, to postpone or withhold application of such provision of thisMandate as he may consider inapplicable to the existing local conditions, and to make suchprovision for the administration of the territories as he may consider suitable to thoseconditions, provided no action shall be taken which is inconsistent with the provisions ofArticles 15, 16 and 18.”

2. In pursuance of the provisions of this Article, His Majesty’s Government invite theCouncil to pass the following resolution: -

“The following provisions of the Mandate for Palestine are not applicable to the ter-ritory known as Trans-Jordan, which comprises all territory lying to the east of a linedrawn from a point two miles west of the town of Akaba on the Gulf of that name up thecentre of the Wady Araba, Dead Sea and River Jordan to its junction with the RiverYarmuk ; thence up the centre of that river to the Syrian Frontier.”

Preamble.- Recitals 2 and 3.

Article 2. - The words “placing the country under such political administration andeconomic conditions as will secure the establishment of the Jewish national home, as laiddown in the preamble, and”.

Article 4.


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Article 6.Article 7.- The sentence “The shall be included in this law provisions framed so as to

facilitate the acquisition of Palestinian citizenship by Jews who take up their permanentresidence in Palestine.”

Article 11.- The second sentence of the first paragraph and the second paragraph.Article 13.Article 14.Article 22.Article 23.

_______________

In the application of the Mandate to Trans-Jordan, the action which, in Palestine, istaken by the Administration of the latter country, will be taken by the Administration ofTrans-Jordan under the general supervision of the Mandatory.

3. His Majesty’s Government accept full responsibility as Mandatory for Trans-Jordan, and undertake that such provision as may be made for the administration of thatterritory in accordance with Article 25 of the Mandate shall be in no way inconsistent withthose provisions of tile Mandate which are not by this resolution declared inapplicable.


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UN Security Council Resolution 126919 October 1999

The Security Council,

Deeply concerned by the increase in acts of international terrorism which endangers the lives andwell-being of individuals worldwide as well as the peace and security of all States,

Condemning all acts of terrorism, irrespective of motive, wherever and by whomever committed,

Mindful of all relevant resolutions of the General Assembly, including resolution 49/60 of 9December 1994, by which it adopted the Declaration on Measures to Eliminate InternationalTerrorism,

Emphasizing the necessity to intensify the fight against terrorism at the national level and tostrengthen, under the auspices of the United Nations, effective international cooperation in this fieldon the basis of the principles of the Charter of the United Nations and norms of international law,including respect for international humanitarian law and human rights,

Supporting the efforts to promote universal participation in and implementation of the existinginternational anti-terrorist conventions, as well as to develop new international instruments tocounter the terrorist threat,

Commending the work done by the General Assembly, relevant United Nations organs andspecialized agencies and regional and other organizations to combat international terrorism,

Determined to contribute, in accordance with the Charter of the United Nations, to the efforts tocombat terrorism in all its forms,

Reaffirming that the suppression of acts of international terrorism, including those in which Statesare involved, is an essential contribution to the maintenance of international peace and security,

1. Unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable,regardless of their motivation, in all their forms and manifestations, wherever and by whomevercommitted, in particular those which could threaten international peace and security;

2. Calls upon all States to implement fully the international anti-terrorist conventions to which theyare parties, encourages all States to consider as a matter of priority adhering to those to which theyare not parties, and encourages also the speedy adoption of the pending conventions;

3. Stresses the vital role of the United Nations in strengthening international cooperation incombating terrorism and, emphasizes the importance of enhanced coordination among States,international and regional organizations;

4. Calls upon all States to take, inter alia, in the context of such cooperation and coordination,appropriate steps to:

- cooperate with each other, particularly through bilateral and multilateral agreements andarrangements, to prevent and suppress terrorist acts, protect their nationals and other persons againstterrorist attacks and bring to justice the perpetrators of such acts;

- prevent and suppress in their territories through all lawful means the preparation and financing ofany acts of terrorism;


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A P P E N D I X B – U N R E S O L U T I O N S R E G A R D I N G T E R R O R I S M

- deny those who plan, finance or commit terrorist acts safe havens by ensuring their apprehensionand prosecution or extradition;

- take appropriate measures in conformity with the relevant provisions of national and internationallaw, including international standards of human rights, before granting refugee status, for the purposeof ensuring that the asylum-seeker has not participated in terrorist acts;

- exchange information in accordance with international and domestic law, and cooperate onadministrative and judicial matters in order to prevent the commission of terrorist acts;

5. Requests the Secretary-General, in his reports to the General Assembly, in particular submitted inaccordance with its resolution 50/53 on measures to eliminate international terrorism, to pay specialattention to the need to prevent and fight the threat to international peace and security as a result ofterrorist activities;

6. Expresses its readiness to consider relevant provisions of the reports mentioned in paragraph 5above and to take necessary steps in accordance with its responsibilities under the Charter of theUnited Nations in order to counter terrorist threats to international peace and security;

7. Decides to remain seized of this matter.



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UN Security Council resolution 136812 September 2001


Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terroristacts,

Recognizing the inherent right of individual or collective self-defence in accordance with theCharter,

1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took placeon 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, likeany act of international terrorism, as a threat to international peace and security;

2. Expresses its deepest sympathy and condolences to the victims and their families and to the peo-ple and Government of the United States of America;

3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers andsponsors of these terrorist attacks and stresses that those responsible for aiding, supporting orharbouring the perpetrators, organizers and sponsors of these acts will be held accountable;

4. Calls also on the international community to redouble their efforts to prevent and suppress terroristacts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 (1999) of 19October 1999;

5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11September 2001, and to combat all forms of terrorism, in accordance with its responsibilities underthe Charter of the United Nations;

6. Decides to remain seized of the matter.


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UN Security Council Resolution 1373September 28, 2001


Reaffirming its resolutions 1269 (1999) of 19 October 1999 and 1368 (2001) of 12 September 2001,

Reaffirming also its unequivocal condemnation of the terrorist attacks which took place in New York,Washington, D.C., and Pennsylvania on 11 September 2001, and expressing its determination toprevent all such acts,

Reaffirming further that such acts, like any act of international terrorism, constitute a threat to inter-national peace and security,

Reaffirming the inherent right of individual or collective self-defence as recognized by the Charterof the United Nations as reiterated in resolution 1368 (2001),

Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations,threats to international peace and security caused by terrorist acts,

Deeply concerned by the increase, in various regions of the world, of acts of terrorism motivated byintolerance or extremism,

Calling on States to work together urgently to prevent and suppress terrorist acts, including throughincreased cooperation and full implementation of the relevant international conventions relating toterrorism,

Recognizing the need for States to complement international cooperation by taking additionalmeasures to prevent and suppress, in their territories through all lawful means, the financing andpreparation of any acts of terrorism,

Reaffirming the principle established by the General Assembly in its declaration of October 1970(resolution 2625 (XXV)) and reiterated by the Security Council in its resolution 1189 (1998) of 13August 1998, namely that every State has the duty to refrain from organizing, instigating, assistingor participating in terrorist acts in another State or acquiescing in organized activities within its territorydirected towards the commission of such acts,

Acting under Chapter VII of the Charter of the United Nations,

1. Decides that all States shall:

(a) Prevent and suppress the financing of terrorist acts;

(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds bytheir nationals or in their territories with the intention that the funds should be used, or in theknowledge that they are to be used, in order to carry out terrorist acts;

(c) Freeze without delay funds and other financial assets or economic resources of persons whocommit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terroristacts; of entities owned or controlled directly or indirectly by such persons; and of persons and entitiesacting on behalf of, or at the direction of such persons and entities, including funds derived orgenerated from property owned or controlled directly or indirectly by such persons and associatedpersons and entities;



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(d) Prohibit their nationals or any persons and entities within their territories from making any funds,financial assets or economic resources or financial or other related services available, directly orindirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate inthe commission of terrorist acts, of entities owned or controlled, directly or indirectly, by suchpersons and of persons and entities acting on behalf of or at the direction of such persons;

2. Decides also that all States shall:

(a) Refrain from providing any form of support, active or passive, to entities or persons involved interrorist acts, including by suppressing recruitment of members of terrorist groups and eliminatingthe supply of weapons to terrorists;

(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision ofearly warning to other States by exchange of information;

(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safehavens;

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respectiveterritories for those purposes against other States or their citizens;

(e) Ensure that any person who participates in the financing, planning, preparation or perpetration ofterrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to anyother measures against them, such terrorist acts are established as serious criminal offences indomestic laws and regulations and that the punishment duly reflects the seriousness of such terroristacts;

(f) Afford one another the greatest measure of assistance in connection with criminal investigationsor criminal proceedings relating to the financing or support of terrorist acts, including assistance inobtaining evidence in their possession necessary for the proceedings;

(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controlson issuance of identity papers and travel documents, and through measures for preventingcounterfeiting, forgery or fraudulent use of identity papers and travel documents;

3. Calls upon all States to:

(a) Find ways of intensifying and accelerating the exchange of operational information, especiallyregarding actions or movements of terrorist persons or networks; forged or falsified traveldocuments; traffic in arms, explosives or sensitive materials; use of communications technologies byterrorist groups; and the threat posed by the possession of weapons of mass destruction by terroristgroups;

(b) Exchange information in accordance with international and domestic law and cooperate onadministrative and judicial matters to prevent the commission of terrorist acts;

(c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, toprevent and suppress terrorist attacks and take action against perpetrators of such acts;

(d) Become parties as soon as possible to the relevant international conventions and protocolsrelating to terrorism, including the International Convention for the Suppression of the Financing ofTerrorism of 9 December 1999;

(e) Increase cooperation and fully implement the relevant international conventions and protocolsrelating to terrorism and Security Council resolutions 1269 (1999) and 1368 (2001);


(f) Take appropriate measures in conformity with the relevant provisions of national and internationallaw, including international standards of human rights, before granting refugee status, for the purposeof ensuring that the asylum seeker has not planned, facilitated or participated in the commission ofterrorist acts;

(g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators,organizers or facilitators of terrorist acts, and that claims of political motivation are not recognizedas grounds for refusing requests for the extradition of alleged terrorists;

4. Notes with concern the close connection between international terrorism and transnationalorganized crime, illicit drugs, money-laundering, illegal arms-trafficking, and illegal movement ofnuclear, chemical, biological and other potentially deadly materials, and in this regard emphasizesthe need to enhance coordination of efforts on national, subregional, regional and international levelsin order to strengthen a global response to this serious challenge and threat to international security;

5. Declares that acts, methods, and practices of terrorism are contrary to the purposes and principlesof the United Nations and that knowingly financing, planning and inciting terrorist acts are alsocontrary to the purposes and principles of the United Nations;

6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committeeof the Security Council, consisting of all the members of the Council, to monitor implementation ofthis resolution, with the assistance of appropriate expertise, and calls upon all States to report to theCommittee, no later than 90 days from the date of adoption of this resolution and thereafter accordingto a timetable to be proposed by the Committee, on the steps they have taken to implement thisresolution;

7. Directs the Committee to delineate its tasks, submit a work programme within 30 days of theadoption of this resolution, and to consider the support it requires, in consultation with the Secretary-General;

8. Expresses its determination to take all necessary steps in order to ensure the full implementationof this resolution, in accordance with its responsibilities under the Charter;

9. Decides to remain seized of this matter.

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UN Security Council resolution 137712 November 2001

The Security Council,Decides to adopt the attached declaration on the global effort to combat terrorism.

Annex


Meeting at the Ministerial level,

Recalling its resolutions 1269 (1999) of 19 October 1999, 1368 (2001) of 12 September2001 and 1373 (2001) of 28 September 2001,

Declares that acts of international terrorism constitute one of the most serious threats tointernational peace and security in the twenty-first century,

Further declares that acts of international terrorism constitute a challenge to all States andto all of humanity,

Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism ascriminal and unjustifiable, regardless of their motivation, in all their forms and manifestations,wherever and by whomever committed,

Stresses that acts of international terrorism are contrary to the purposes and principles ofthe Charter of the United Nations, and that the financing, planning and preparation of as well as anyother form of support for acts of international terrorism are similarly contrary to the purposes andprinciples of the Charter of the United Nations,

Underlines that acts of terrorism endanger innocent lives and the dignity and security ofhuman beings everywhere, threaten the social and economic development of all States andundermine global stability and prosperity,

Affirms that a sustained, comprehensive approach involving the active participation andcollaboration of all Member States of the United Nations, and in accordance with the Charter of theUnited Nations and international law, is essential to combat the scourge of international terrorism,

Stresses that continuing international efforts to broaden the understanding amongcivilizations and to address regional conflicts and the full range of global issues, includingdevelopment issues, will contribute to international cooperation and collaboration, which themselvesare necessary to sustain the broadest possible fight against international terrorism,

Welcomes the commitment expressed by States to fight the scourge of internationalterrorism, including during the General Assembly plenary debate from 1 to 5 October 2001, calls onall States to become parties as soon as possible to the relevant international conventions andprotocols relating to terrorism, and encourages Member States to take forward work in this area,


Calls on all States to take urgent steps to implement fully resolution 1373 (2001), and toassist each other in doing so, and underlines the obligation on States to deny financial and all otherforms of support and safe haven to terrorists and those supporting terrorism,

Expresses its determination to proceed with the implementation of that resolution in fullcooperation with the whole membership of the United Nations, and welcomes the progress made sofar by the Counter-Terrorism Committee established by paragraph 6 of resolution 1373 (2001) tomonitor implementation of that resolution,

Recognizes that many States will require assistance in implementing all the requirementsof resolution 1373 (2001), and invites States to inform the Counter-Terrorism Committee of areas inwhich they require such support, In that context, invites the Counter-Terrorism Committee to exploreways in which States can be assisted, and in particular to explore with international, regional andsubregional organizations:

• the promotion of best-practice in the areas covered by resolution 1373 (2001), includingthe preparation of model laws as appropriate,

• the availability of existing technical, financial, regulatory, legislative or other assistanceprogrammes which might facilitate the implementation of resolution 1373 (2001),

• the promotion of possible synergies between these assistance programmes, Calls on allStates to intensify their efforts to eliminate the scourge of international terrorism.


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UN Security Council Resolution 24222 November 1967


Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a justand lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nationshave undertaken a commitment to act in accordance with Article 2 of the Charter,

1. Affirms that the fulfilment of Charter principles requires the establishment of a just and lastingpeace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of thesovereignty, territorial integrity and political independence of every State in the area and their rightto live in peace within secure and recognized boundaries free from threats or acts of force;

2. Affirms further the necessity

(a) For guaranteeing freedom of navigation through international waterways in the area;

(b) For achieving a just settlement of the refugee problem;

(c) For guaranteeing the territorial inviolability and political independence of every State in the area,through measures including the establishment of demilitarized zones;

3. Requests the Secretary-General to designate a Special Representative to proceed to the MiddleEast to establish and maintain contacts with the States concerned in order to promote agreement andassist efforts to achieve a peaceful and accepted settlement in accordance with the provisions andprinciples in this resolution;

4. Requests the Secretary-General to report to the Security Council on the progress of the efforts ofthe Special Representative as soon as possible.

Adopted unanimously at the 1382nd meeting

Charter of the United NationsArticle 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accor-dance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting frommembership, shall fulfill in good faith the obligations assumed by them in accordance withthe present Charter.

3. All Members shall settle their international disputes by peaceful means in such a mannerthat international peace and security, and justice, are not endangered.


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4. All Members shall refrain in their international relations from the threat or use of forceagainst the territorial integrity or political independence of any state, or in any othermanner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes inaccordance with the present Charter, and shall refrain from giving assistance to any stateagainst which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nationsact in accordance with these Principles so far as may be necessary for the maintenance ofinternational peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervenein matters which are essentially within the domestic jurisdiction of any state or shall requirethe Members to submit such matters to settlement under the present Charter; but thisprinciple shall not prejudice the application of enforcement measures under Chapter Vll.

UN Security Council Resolution 33822 October 1973

The Security Council

1. Calls upon all parties to the present fighting to cease all firing and terminate all military activityimmediately, no later than 12 hours after the moment of the adoption of this decision, in the positionsthey now occupy;

2. Calls upon the parties concerned to start immediately after the cease-fire the implementation ofSecurity Council resolution 242 (1967) in all of its parts;

3. Decides that, immediately and concurrently with the cease-fire, negotiations shall start betweenthe parties concerned under appropriate auspices aimed at establishing a just and durable peace in theMiddle East.

Adopted at the 1747th meetingby 14 votes to none.

1/ One member (China) did not participate in the voting.



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UN Security Council Resolution 151519 November 2003


Recalling all its previous relevant resolutions, in particular resolutions 242 (1967), 338 (1973), 1397(2002) and the Madrid principles,

Expressing its grave concern at the continuation of the tragic and violent events in the Middle East,

Reiterating the demand for an immediate cessation of all acts of violence, including all acts ofterrorism, provocation, incitement and destruction,

Reaffirming its vision of a region where two States, Israel and Palestine, live side by side withinsecure and recognized borders,

Emphasizing the need to achieve a comprehensive, just and lasting peace in the Middle East,including the Israeli-Syrian and Israeli-Lebanese tracks,

Welcoming and encouraging the diplomatic efforts of the international Quartet and others,

1. Endorses the Quartet Performance-based Roadmap to a Permanent Two-State Solution to theIsraeli-Palestinian Conflict (S/2003/529);

2. Calls on the parties to fulfil their obligations under the Roadmap in cooperation with the Quartetand to achieve the vision of two States living side by side in peace and security;

3. Decides to remain seized of the matter.


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UN General Assembly Resolution 262524 October 1970

(Selective Applicable Paragraphs)

2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

The General Assembly,

… Having considered the principles of international law relating to friendly relations and co-operation among States,

1. Solemnly proclaims the following principles:

The principle that States shall refrain in their International relations from the threat or use offorce against the territorial integrity or political independence of any State, or in any other mannerinconsistent with the purposes of the United Nations

Every State has the duty to refrain in its international relations from the threat or use of forceagainst the territorial integrity or political independence of any State, or in any other mannerinconsistent with the purposes of the United Nations. Such a threat or use of force constitutes aviolation of international law and the Charter of the United Nations end shall never be employed asa means of settling international issues.

A war of aggression constitutes a crime against the peace, for which there is responsibilityunder international law.

In accordance with the purposes and principles of the United Nations, States have the duty torefrain from propaganda for wars of aggression.

Every State has the duty to refrain from the threat or use of force to violate the existinginternational boundaries of another State or as a means of solving international disputes, includingterritorial disputes and problems concerning frontiers of States.

Every State likewise has the duty to refrain from the threat or use of force to violate inter-national lines of demarcation, such as armistice lines, established by or pursuant to an internationalagreement to which it is a party or which it is otherwise bound to respect. Nothing in the foregoingshall be construed as prejudicing the positions of the parties concerned with regard to the status andeffects of such lines under their special regimes or as effecting their temporary character.

States have a duty to refrain from acts of reprisal involving the use of force.

Every State has the duty to refrain from any forcible action which deprives peoples referred toin the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.

Every State has the duty to refrain from organizing or encouraging the organization of irregu-lar forces or armed bands, including mercenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating, assisting or participating in actsof civil strife or terrorist acts in another State or acquiescing in organized activities within its territorydirected towards the commission of inch acts, when the acts referred to in the present paragraphinvolve a threat or use of force.



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The territory of a State shall not be the object of military occupation resulting from the use offorce in contravention of the provisions of the Charter. The territory of a State shall not be the objectof acquisition by another State resulting from the threat or use of force. No territorial acquisitionresulting from the threat or use of force shall be recognized as legal. Nothing in the foregoing shallbe construed as affecting:

(a) Provisions of the Charter or any international agreement prior to the Charter regime andvalid under international law; or

(b) The powers of the Security Council under the Charter.

All States shall pursue in good faith negotiations for the only conclusion of a universal treatyon general and complete disarmament under effective international control and strive to adoptappropriate measures to reduce international tensions and strengthen confidence among States.

All States shall comply in good faith with their obligations under the generally recognizedprinciples and rules of international law with respect to the maintenance of international peace andsecurity, and shall endeavour to make the United Nations security system based on the Charter moreeffective.

Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any waythe scope of the provisions of the Charter concerning cases in which the use of force is lawful.

The principle that States shall settle their international disputes by peaceful means in such amanner that International peace and security and justice are not endangered

Every State shall settle its international disputes with other States by peaceful means in such amanner that international peace and security and justice are not endangered. …

…The principle of equal rights and self-determination at peoples

By virtue of the principle of equal rights and self-determination of peoples enshrined in theCharter of the United Nations, all peoples have the right freely to determine, without externalinterference, their political status and to pursue their economic, social and cultural development, andevery State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of theprinciple of equal rights and self-determination of peoples, in accordance with the provisions of theCharter, and to render assistance to the United Nations in carrying out the responsibilities entrustedto it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of thepeoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination andexploitation constitutes a violation of the principle, as well as a denial of fundamental human rights,and is contrary to the Charter.

Every State has the duty to promote through joint and separate action universal respect for andobservance of human rights and fundamental freedoms in accordance with the Charter.

The establishment of a sovereign and independent State, the free association or integration withan independent State or the emergence into any other political status freely determined by a peopleconstitute modes of implementing the right of self-determination by that people.


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Every State has the duty to refrain from any forcible action which deprives peoples referred toabove in the elaboration of the present principle of their right to self-determination and freedom andindependence. In their actions against, and resistance to, such forcible action in pursuit of theexercise of their right to self-determination, such peoples are entitled to seek and to receive supportin accordance with the purposes and principles of the Charter.

The territory of s colony or other Non-Self-Governing Territory has, under the Charter, a statusseparate and distinct from the territory of the State administering it; and such separate and distinctstatus under the Charter shall exist until the people of the colony or Non-Self-Governing Territoryhave exercised their right of self-determination in accordance with the Charter, and particularly itspurposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging anyaction which would dismember or impair, totally or in part, the territorial integrity or political unityof sovereign and independent States conducting themselves in compliance with the principle of equalrights and self-determination of peoples as described above and thus possessed of a governmentrepresenting the whole people belonging to the territory without distinction as to race, creed orcolour.

Every State shall refrain from any action aimed at the partial or total disruption of the nationalunity and territorial integrity of any other State or country. …

GENERAL PART

2. Declares that:

In their interpretation and application the above principles are interrelated and each principleShould be construed in the context of the other principles.

Nothing in this Declaration shall be construed as prejudicing in any manner the provisions ofthe Charter or the rights and duties of Member States under the Charter or the rights of peoples underthe Charter, taking into account the elaboration of these rights in this Declaration.

3. Declares further that:

The principles of the Charter which are embodied in this Declaration constitute basic princi-ples of international law, and consequently appeals to all States to be guided by these principles intheir international conduct and to develop their mutual relations on the basis of the strict observanceof these principles.


UN General Assembly Resolution 331414 December 1974

(Definition of Aggression)


Having considered the report of the Special Committee on the Question of Defining Aggression,established pursuant to its resolution 2330 (XXII) of 18 December 1967, covering the work of itsseventh session held from 11 March to 12 April 1974, including the draft Definition of Aggressionadopted by the Special Committee by consensus and recommended for adoption by the GeneralAssembly, Deeply convinced that the adoption of the Definition of Aggression would contribute tothe strengthening of international peace and security,

1. Approves the Definition of Aggression, the text of which it annexed to the present resolution;

2. Expresses its appreciation to the Special Committee on the Question of Defining Aggression forits work which resulted in the elaboration of the Definition of Aggression;

3. Calls upon all States to refrain from all acts of aggression and other uses of force contrary to theCharter of the United Nations and the Declaration on Principles of International Law concerningFriendly Relations and Co-operation among States in accordance with the Charter of the UnitedNations;

4. Calls the attention of the Security Council to the Definition of Aggression, as set out below, andrecommends that it should, as appropriate, take account of that Definition as guidance indetermining, in accordance with the Charter, the existence of an act of aggression.

ANNEXDEFINITION OF AGGRESSION


Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintaininternational peace and security and to take effective collective measures for the prevention andremoval of threats to the peace, and for the suppression of acts of aggression or other breaches of thepeace.

Recalling that the Security Council, in accordance with Article 39 of the Charter of the UnitedNations, shall determine the existence of any threat to the peace, breach of the peace or act ofaggression and shall make recommendations, or decide what measures shall be taken in accordancewith Articles 41 and 42, to maintain or restore international peace and security.

Recalling also the duty of States under the Charter to settle their international disputes by peacefulmeans in order not to endanger international peace, security and justice,

Bearing in mind that nothing in this Definition shall be interpreted as in any way affecting the scopeof the provisions of the Charter with respect to the functions and powers of the organs of the UnitedNations,


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Considering also that, since aggression is the most serious and dangerous form of the illegal use offorce, being fraught, in the conditions created by the existence of all types of weapons of massdestruction, with the possible threat of a world conflict and all its catastrophic consequences,aggression should be defined at the present stage,

Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity,

Reaffirming also that the territory of a State shall not be violated by being the object, eventemporarily, of military occupation or of other measures of force taken by another State incontravention of the Charter, and that it shall not be the object of acquisition by another Stateresulting from such measures or the threat thereof,

Reaffirming also the provisions of the Declaration on Principles of International Law concerningFriendly Relations and Co-operation among States in accordance with the Charter of the UnitedNations,

Convinced that the adoption of a definition of aggression ought to have the effect of deterring apotential aggressor, would simplify the determination of acts of aggression and the implementationof measures to suppress them and would also facilitate the protection of the rights and lawfulinterests of, and the rendering of assistance to, the victim,

Believing that, although the question whether an act of aggression has been committed must beconsidered in the light of all the circumstances of each particular case, it is nevertheless desirable toformulate basic principles as guidance for such determination,

Adopts the following Definition of Aggression:

Article 1

Aggression is the use of armed force by a State against the sovereignty, territorial integrity orpolitical independence of another State, or in any other manner inconsistent with the Charter ofthe United Nations, as set out in this Definition.

Explanatory note: In this Definition the term “State”:

(a) Is used without prejudice to questions of recognition or to whether a State is a Memberof the United Nations;

(b) Includes the concept of a “group of States” where appropriate.

Article 2

The first use of armed force by a State in contravention of the Charter shall constitute prima facieevidence of an act of aggression although the Security Council may, in conformity with theCharter, conclude that a determination that an act of aggression has been committed would notbe justified in the light of other relevant circumstances, including the fact that the acts concernedor their consequences are not of sufficient gravity.

Article 3

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordancewith the provisions of article 2, qualify as an act of aggression:



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(a) The invasion or attack by the armed forces of a State of the territory of another State, ofany military occupation, however temporary, resulting from such invasion or attack. or anyannexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or theuse of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(e) The use of armed forces of one State which are within the territory of another State withthe agreement of the receiving State, in contravention of the conditions provided for in theagreement or any extension of their presence in such territory beyond the termination of theagreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of anotherState, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed hands, groups, irregulars or mercenaries,which carry out acts of armed force against another State of such gravity as to amount to theacts listed above, or its substantial involvement therein.

Article 4

The acts enumerated above are not exhaustive and the Security Council may determine that otheracts constitute aggression under the provisions of the Charter.

Article 5

1. No consideration of whatever nature, whether political, economic, military or otherwise, mayserve as a justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise tointernational responsibility.

3. No territorial acquisition or special advantage resulting from aggression is or shall berecognized as lawful.

Article 6

Nothing in this Definition shall be construed as in any way enlarging or diminishing the scopeof the Charter, including its provisions concerning cases in which the use of force is lawful.

Article 7

Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forciblydeprived of that right and referred to in the Declaration on Principles of International Lawconcerning Friendly Relations and Co-operation among States in accordance with the Charter ofthe United Nations, particularly peoples under colonial and racist regimes or other forms of aliendomination; nor the right of these peoples to struggle to that end and to seek and receive support,in accordance with the principles of the Charter and in conformity with the above-mentionedDeclaration.


Article 8

In their interpretation and application the above provisions are interrelated and each provisionshould be construed in the context of the other provisions.

EXPLANATORY NOTES FROM THE REPORT OF THESPECIAL COMMITTEE ON THE QUESTION OF

DEFINING AGGRESSIONUN GAOR 29th Sess., Supp. No. 19.

1. With reference to article 3, paragraph (b), the Special Committee agreed that theexpression “any weapons” is used without making a distinction between conventionalweapons, weapons of mass destruction and any other kind of weapon.

2. With reference to article 5, paragraph 1, the Committee had in mind, in particular, theprinciple contained in the Declaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in accordance with the Charger of the UnitedNations according to which “No State or group of States has the right to intervene, directlyor indirectly for any reason whatever, in the internal affairs of any other State”.

3. With reference to article 5, paragraph 2, the words “international responsibility” are usedwithout prejudice to the scope of this term.

4. With reference to article 5, paragraph 3, the Committee states that this paragraph shouldnot be construed so as to prejudice the established principles of international law relating tothe inadmissibility of territorial acquisition resulting from the threat or use of force.

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General Assembly30 April 1947

QUESTION OF PALESTINEARTICLE 22 OF THE COVENANT OF THE LEAGUE OF NATIONS

1. To those colonies and territories which as a consequence of the late war have ceased to beunder the sovereignty of the States which formerly governed them and which are inhabited bypeoples not yet able to stand by themselves under the strenuous conditions of the modern world,there should be applied the principle that the well-being and development of such peoples forma sacred trust of civilization and that securities for theperformance of this trust should beembodied in this Covenant.

2. The best method of giving practical effect to this principle is that the tutelage of such peoplesshould be entrusted to advanced nations who by reason of their resources, their experience ortheir geographical position can best undertake this responsibility, and who are willing to acceptit, and that this tutelage should be exercised by them as Mandatories on behalf of the League.

3. The character of the mandate must differ according to the stage of the development of thepeople, the geographical situation of the territory, its economic condition and other similarcircumstances.

4. Certain communities formerly belonging to the Turkish Empire have reached a stage ofdevelopment where their existence as independent nations can be provisionally recognized.subject to the rendering of administrative advice and assistance by a Mandatory until such timeas they are able to stand alone. The wishes of these communities must be a principalconsideration in the selection of the Mandatory.

5. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory mustbe responsible for the administration of the territory under conditions which will guaranteefreedom of conscience and religion, subject only to the maintenance of public order and morals,the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and theprevention of the establishment of fortifications or military and naval bases and of militarytraining of the natives for other than police purposes and the defence of territory, and will alsosecure equal opportunities for the trade and commerce of other Members of the League.

6. There are territories, such as South West Africa and certain of the South Pacific Islands, which,owing to the sparseness of their population, or their small size, or their remoteness from thecentres of civilization, or their geographical contiguity to the territory of the Mandatory, andother circumstances, can be best administered under the laws of the Mandatory as integralportions of its territory, subject to the safeguards above mentioned in the interests of the indige-nous population.


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7. In every case of mandate, the Mandatory shall render to the Council an annual report inreference to the territory committed to its charge.

8. The degree of authority, control, or administration to be exercised by the Mandatory shall, ifnot previously agreed upon by the Members of the League, be explicitly defined in each case bythe Council.

9. A permanent Commission shall be constituted to receive and examine the annual reports ofthe Mandatories and to advise the Council on all matters relating to the observance of themandates.

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http://www.pna.gov.ps/Government/gov/plo_Charter.asp. - As of July 19 2005

PLO CHARTERAlso known as “the Palestinian National Charter” or “the Palestinian Convenant”. Adopted by thePalestine National Council, July 1-17, 1968:

Article 1: Palestine is the homeland of the Arab Palestinian people; it is an indivisible part of theArab homeland, and the Palestinian people are an integral part of the Arab nation.

Article 2: Palestine, with the boundaries it had during the British Mandate, is an indivisibleterritorial unit.

Article 3: The Palestinian Arab people possess the legal right to their homeland and have the rightto determine their destiny after achieving the liberation of their country in accordance with theirwishes and entirely of their own accord and will.

Article 4: The Palestinian identity is a genuine, essential, and inherent characteristic; it istransmitted from parents to children. The Zionist occupation and the dispersal of the PalestinianArab people, through the disasters which befell them, do not make them lose their Palestinianidentity and their membership in the Palestinian community, nor do they negate them.

Article 5: The Palestinians are those Arab nationals who, until 1947, normally resided in Palestineregardless of whether they were evicted from it or have stayed there. Anyone born, after that date,of a Palestinian father – whether inside Palestine or outside it - is also a Palestinian.

Article 6: The Jews who had normally resided in Palestine until the beginning of the Zionistinvasion will be considered Palestinians.

Article 7: That there is a Palestinian community and that it has material, spiritual, and historicalconnection with Palestine are indisputable facts. It is a national duty to bring up individualPalestinians in an Arab revolutionary manner. All means of information and education must beadopted in order to acquaint the Palestinian with his country in the most profound manner, bothspiritual and material, that is possible. He must be prepared for the armed struggle and ready tosacrifice his wealth and his life in order to win back his homeland and bring about its liberation.

Article 8: The phase in their history, through which the Palestinian people are now living, is thatof national (watani) struggle for the liberation of Palestine. Thus the conflicts among thePalestinian national forces are secondary, and should be ended for the sake of the basic conflict thatexists between the forces of Zionism and of imperialism on the one hand, and the Palestinian Arabpeople on the other. On this basis the Palestinian masses, regardless of whether they are residingin the national homeland or in diaspora (mahajir) constitute – both their organizations and theindividuals – one national front working for the retrieval of Palestine and its liberation througharmed struggle.

Article 9: Armed struggle is the only way to liberate Palestine. Thus it is the overall strategy, notmerely a tactical phase. The Palestinian Arab people assert their absolute determination and firmresolution to continue their armed struggle and to work for an armed popular revolution for theliberation of their country and their return to it. They also assert their right to normal life inPalestine and to exercise their right to self-determination and sovereignty over it.


Article 10: Commando action constitutes the nucleus of the Palestinian popular liberation war.This requires its escalation, comprehensiveness, and the mobilization of all the Palestinian popularand educational efforts and their organization and involvement in the armed Palestinian revolution.It also requires the achieving of unity for the national (watani) struggle among the differentgroupings of the Palestinian people, and between the Palestinian people and the Arab masses, soas to secure the continuation of the revolution, its escalation, and victory.

Article 11: The Palestinians will have three mottoes: national (wataniyya) unity, national(qawmiyya) mobilization, and liberation.

Article 12: The Palestinian people believe in Arab unity. In order to contribute their share towardthe attainment of that objective, however, they must, at the present stage of their struggle,safeguard their Palestinian identity and develop their consciousness of that identity, and opposeany plan that may dissolve or impair it.

Article 13: Arab unity and the liberation of Palestine are two complementary objectives, theattainment of either of which facilitates the attainment of the other. Thus, Arab unity leads to theliberation of Palestine, the liberation of Palestine leads to Arab unity; and work toward therealization of one objective proceeds side by side with work toward the realization of the other.

Article 14: The destiny of the Arab nation, and indeed Arab existence itself, depend upon thedestiny of the Palestine cause. From this interdependence springs the Arab nation’s pursuit of, andstriving for, the liberation of Palestine. The people of Palestine play the role of the vanguard in therealization of this sacred (qawmi) goal.

Article 15: The liberation of Palestine, from an Arab viewpoint, is a national (qawmi) duty and itattempts to repel the Zionist and imperialist aggression against the Arab homeland, and aims at theelimination of Zionism in Palestine. Absolute responsibility for this falls upon the Arab nation –peoples and governments – with the Arab people of Palestine in the vanguard. Accordingly, theArab nation must mobilize all its military, human, moral, and spiritual capabilities to participateactively

with the Palestinian people in the liberation of Palestine. It must, particularly in the phase of thearmed Palestinian revolution, offer and furnish the Palestinian people with all possible help, andmaterial and human support, and make available to them the means and opportunities that willenable them to continue to carry out their leading role in the armed revolution, until they liberatetheir homeland.

Article 16: The liberation of Palestine, from a spiritual point of view, will provide the Holy Landwith an atmosphere of safety and tranquility, which in turn will safeguard the country’s religioussanctuaries and guarantee freedom of worship and of visit to all, without discrimination of race,color, language, or religion. Accordingly, the people of Palestine look to all spiritual forces in theworld for support.

Article 17: The liberation of Palestine, from a human point of view, will restore to the Palestinianindividual his dignity, pride, and freedom. Accordingly the Palestinian Arab people look forwardto the support of all those who believe in the dignity of man and his freedom in the world.

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Article 18: The liberation of Palestine, from an international point of view, is a defensive actionnecessitated by the demands of self-defense. Accordingly the Palestinian people, desirous as theyare of the friendship of all people, look to freedom-loving, and peace-loving states for support inorder to restore their legitimate rights in Palestine, to re-establish peace and security in the country,and to enable its people to exercise national sovereignty and freedom.

Article 19: The partition of Palestine in 1947 and the establishment of the state of Israel areentirely illegal, regardless of the passage of time, because they were contrary to the will of thePalestinian people and to their natural right in their homeland, and inconsistent with the principlesembodied in the Charter of the United Nations, particularly the right to self-determination.

Article 20: The Balfour Declaration, the Mandate for Palestine, and everything that has been basedupon them, are deemed null and void. Claims of historical or religious ties of Jews with Palestineare incompatible with the facts of history and the true conception of what constitutes statehood.Judaism, being a religion, is not an independent nationality. Nor do Jews constitute a single nationwith an identity of its own; they are citizens of the states to which they belong.

Article 21: The Arab Palestinian people, expressing themselves by the armed Palestinianrevolution, reject all solutions which are substitutes for the total liberation of Palestine and rejectall proposals aiming at the liquidation of the Palestinian problem, or its internationalization.

Article 22: Zionism is a political movement organically associated with international imperialismand antagonistic to all action for liberation and to progressive movements in the world. It is racistand fanatic in its nature, aggressive, expansionist, and colonial in its aims, and fascist in itsmethods. Israel is the instrument of the Zionist movement, and geographical base for worldimperialism placed strategically in the midst of the Arab homeland to combat the hopes of the Arabnation for liberation, unity, and progress. Israel is a constant source of threat vis-a-vis peace in theMiddle East and the whole world. Since the liberation of Palestine will destroy the Zionist andimperialist presence and will contribute to the establishment of peace in the Middle East, thePalestinian people look for the support of all the progressive and peaceful forces and urge them all,irrespective of their affiliations and beliefs, to offer the Palestinian people all aid and support intheir just struggle for the liberation of their homeland.

Article 23: The demand of security and peace, as well as the demand of right and justice, requireall states to consider Zionism an illegitimate movement, to outlaw its existence, and to ban itsoperations, in order that friendly relations among peoples may be preserved, and the loyalty ofcitizens to their respective homelands safeguarded.

Article 24: The Palestinian people believe in the principles of justice, freedom, sovereignty, self-determination, human dignity, and in the right of all peoples to exercise them.

Article 25: For the realization of the goals of this Charter and its principles, the PalestineLiberation Organization will perform its role in the liberation of Palestine in accordance with theConstitution of this Organization.

Article 26: The Palestine Liberation Organization, representative of the Palestinian revolutionaryforces, is responsible for the Palestinian Arab people’s movement in its struggle – to retrieve itshomeland, liberate and return to it and exercise the right to self-determination in it – in all military,political, and financial fields and also for whatever may be required by the Palestine case on theinter-Arab and international levels.


Article 27: The Palestine Liberation Organization shall cooperate with all Arab states, eachaccording to its potentialities; and will adopt a neutral policy among them in the light of therequirements of the war of liberation; and on this basis it shall not interfere in the internal affairsof any Arab state.

Article 28: The Palestinian Arab people assert the genuineness and independence of their national(wataniyya) revolution and reject all forms of intervention, trusteeship, and subordination.

Article 29: The Palestinian people possess the fundamental and genuine legal right to liberate andretrieve their homeland. The Palestinian people determine their attitude toward all states and forceson the basis of the stands they adopt vis-a-vis to the Palestinian revolution to fulfill the aims of thePalestinian people.

Article 30: Fighters and carriers of arms in the war of liberation are the nucleus of the populararmy which will be the protective force for the gains of the Palestinian Arab people.

Article 31: The Organization shall have a flag, an oath of allegiance, and an anthem. All this shallbe decided upon in accordance with a special regulation.

Article 32: Regulations, which shall be known as the Constitution of the Palestinian LiberationOrganization, shall be annexed to this Charter. It will lay down the manner in which theOrganization, and its organs and institutions, shall be constituted; the respective competence ofeach; and the requirements of its obligation under the Charter.

Article 33: This Charter shall not be amended save by [vote of ] a majority of two-thirds of thetotal membership of the National Congress of the Palestine Liberation Organization [taken] at aspecial session convened for that purpose.

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http://www.fateh.net/e_public/constitution.htm. As of July 19 2005FATEH Constitution – Chapter One

Principles... Goals.... MethodsThe Movement’s Essential Principles

Article (1) Palestine is part of the Arab World, and the Palestinian people are part of theArab Nation, and their struggle is part of its struggle.

Article (2) The Palestinian people have an independent identity. They are the sole author-ity that decides their own destiny, and they have complete sovereignty on all their lands.

Article (3) The Palestinian Revolution plays a leading role in liberating Palestine.

Article (4) The Palestinian struggle is part and parcel of the world-wide struggle againstZionism, colonialism and international imperialism.

Article (5) Liberating Palestine is a national obligation which necessities the materialisticand human support of the Arab Nation.

Article (6) UN projects, accords and reso, or those of any individual cowhich underminethe Palestinian people’s right in their homeland are illegal and rejected.

Article (7) The Zionist Movement is racial, colonial and aggressive in ideology, goals,organisation and method.

Article (8) The Israeli existence in Palestine is a Zionist invasion with a colonialexpansive base, and it is a natural ally to colonialism and international imperialism.

Article (9) Liberating Palestine and protecting its holy places is an Arab, religious andhuman obligation.

Article (10) Palestinian National Liberation Movement, “FATEH”, is an independentnational revolutionary movement representing the revolutionary vanguard of thePalestinian people.

Article (11) The crowds which participate in the revolution and liberation are theproprietors of the Palestinian land.

Goals

Article (12) Complete liberation of Palestine, and eradication of Zionist economic,political, military and cultural existence.

Article (13) Establishing an independent democratic state with complete sovereignty onall Palestinian lands, and Jerusalem is its capital city, and protecting the citizens’ legal andequal rights without any racial or religious discrimination.


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A P P E N D I X H – T H E FAT E H C O N S T I T U T I O N

Article (14) Setting up a progressive society that warrants people’s rights and their publicfreedom.

Article (15) Active participation in achieving the Arab Nation’s goals in liberation andbuilding an independent, progressive and united Arab society.

Article (16) Backing up all oppressed people in their struggle for liberation and self-determination in order to build a just, international peace.

Method

Article (17) Armed public revolution is the inevitable method to liberating Palestine.

Article (18) Entire dependence on the Palestinian people which is the pedestal forefrontand on the Arab Nation as a partner in the fight, and realising actual interaction betweenthe Arab Nation and the Palestinian people by involving the Arab people in the fightthrough a united Arab front.

Article (19) Armed struggle is a strategy and not a tactic, and the Palestinian ArabPeople’s armed revolution is a decisive factor in the liberation fight and in uprooting theZionist existence, and this struggle will not cease unless the Zionist state is demolished andPalestine is completely liberated.

Article (20) Achieving mutual understanding with all the national forces participating inthe armed struggle to attain the national unity.

Article (21) Revealing the revolutionary nature of the Palestinian identity at theinternational level, and this does not contradict the everlasting unity between the ArabNation and the Palestinian people.

Article (22) Opposing any political solution offered as an alternative to demolishing theZionist occupation in Palestine, as well as any project intended to liquidate the Palestiniancase or impose any international mandate on its people.

Article (23) Maintaining relations with Arab countries with the objective of developingthe positive aspects in their attitudes with the proviso that the armed struggle is notnegatively affected.

Article (24) Maintaining relations with all liberal forces supporting our just struggle inorder to resist together Zionism and imperialism.

Article (25) Convincing concerned countries in the world to prevent Jewish immigrationto Palestine as a method of solving the problem.

Article (26) Avoiding attempts to exploit the Palestinian case in any Arab or internationalproblems and considering the case above all contentions.

Article (27) “FATEH” does not interfere with local Arab affairs and hence, does nottolerate such interference or obstructing its struggle by any party.



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INTERNATIONAL COURT OF JUSTICE

YEAR 20049 July 2004

20049 JulyGeneral ListNo. 131

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALLIN THE OCCUPIED PALESTINIAN TERRITORY

Jurisdiction of the Court to give the advisory opinion requested.

Article 65, paragraph 1, of the Statute – Article 96, paragraph 1, of the Charter –Power of General Assembly to request advisory opinions – Activities of Assembly.

Events leading to the adoption of General Assembly resolution ES-10/14 requestingthe advisory opinion.

Contention that General Assembly acted ultra vires under the Charter – Article 12,paragraph 1, and Article 24 of the Charter – United Nations practice concerning the interpretationof Article 12, paragraph 1, of Charter – General Assembly did not exceed its competence.

Request for opinion adopted by the Tenth Emergency Special Session of the GeneralAssembly – Session convened pursuant to resolution 377 A (V) (“Uniting for Peace”) –Conditions set by that resolution – Regularity of procedure followed.

Alleged lack of clarity of the terms of the question – Purportedly abstract nature of thequestion – Political aspects of the question – Motives said to have inspired the request and opin-ion’s possible implications – “Legal” nature of question unaffected.

Court having jurisdiction to give advisory opinion requested.•••

Discretionary power of Court to decide whether it should give an opinion.

Article 65, paragraph 1, of Statute – Relevance of lack of consent of a State concerned– Question cannot be regarded only as a bilateral matter between Israel and Palestine but is directly

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of concern to the United Nations – Possible effects of opinion on a political, negotiated solution tothe Israeli-Palestinian conflict – Question representing only one aspect of Israeli-Palestinian con-flict – Sufficiency of information and evidence available to Court – Useful purpose of opinion –Nullus commodum capere potest de sua injuria propria – Opinion to be given to the GeneralAssembly, not to a specific State or entity.

No “compelling reason” for Court to use its discretionary power not to give an advisoryopinion.

•••“Legal consequences ” of a wall in Occupied Palestinian Territory, including in and

around East Jerusalem – Scope of question posed – Request for opinion limited to the legalconsequences of the construction of those parts of the wall situated in Occupied Palestinian Territory– Use of the term “wall”.

Historical background.

Description of the wall.•••

Applicable law.

United Nations Charter – General Assembly resolution 2625 (XXV) – Illegality ofany territorial acquisition resulting from the threat or use of force – Right of peoples to self-deter-mination.

International humanitarian law – Regulations annexed to the Fourth Hague Conventionof 1907 – Fourth Geneva Convention of 1949 – Applicability of Fourth Geneva Convention in theOccupied Palestinian Territory – Human rights law – International Covenant on Civil and PoliticalRights – International Covenant on Economic, Social and Cultural Rights – Convention on theRights of the Child – Relationship between international humanitarian law and human rights law –Applicability of human rights instruments outside national territory – Applicability of those instru-ments in the Occupied Palestinian Territory.

••• Settlements established by Israel in breach of international law in the Occupied

Palestinian Territory – Construction of the wall and its associated régime create a “fait accompli”on the ground that could well become permanent – Risk of situation tantamount to de facto annex-ation – Construction of the wall severely impedes the exercise by the Palestinian people of its rightto self-determination and is therefore a breach of Israel’s obligation to respect that right.

Applicable provisions of international humanitarian law and human rights instrumentsrelevant to the present case – Destruction and requisition of properties – Restrictions on freedom ofmovement of inhabitants of the Occupied Palestinian Territory – Impediments to the exercise bythose concerned of the right to work, to health, to education and to an adequate standard of living– Demographic changes in the Occupied Palestinian Territory – Provisions of internationalhumanitarian law enabling account to be taken of military exigencies – Clauses in human rightsinstruments qualifying rights guaranteed or providing for derogation – Construction of the wall andits associated régime cannot be justified by military exigencies or by the requirements of national


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security or public order – Breach by Israel of various of its obligations under the applicable provi-sions of international humanitarian law and human rights instruments.

Self-defence – Article 51 of the Charter – Attacks against Israel not imputable to a for-eign State – Threat invoked to justify the construction of the wall originating within a territory overwhich Israel exercises control – Article 51 not relevant in the present case.

State of necessity – Customary international law – Conditions – Construction of thewall not the only means to safeguard Israel’s interests against the peril invoked.

Construction of the wall and its associated régime are contrary to international law.•••

Legal consequences of the violation by Israel of its obligations.

Israel’s international responsibility – Israel obliged to comply with the internationalobligations it has breached by the construction of the wall – Israel obliged to put an end to theviolation of its international obligations – Obligation to cease forthwith the works of constructionof the wall, to dismantle it forthwith and to repeal or render ineffective forthwith the legislative andregulatory acts relating to its construction, save where relevant for compliance by Israel with its obli-gation to make reparation for the damage caused – Israel obliged to make reparation for the dam-age caused to all natural or legal persons affected by construction of the wall.

Legal consequences for States other than Israel – Erga omnes character of certain obli-gations violated by Israel – Obligation for all States not to recognize the illegal situation resultingfrom construction of the wall and not to render aid or assistance in maintaining the situation creat-ed by such construction – Obligation for all States, while respecting the Charter and internationallaw, to see to it that any impediment, resulting from the construction of the wall, to the exercise bythe Palestinian people of its right to self-determination is brought to an end – Obligation for allStates parties to the Fourth Geneva Convention, while respecting the Charter and international law,to ensure compliance by Israel with international humanitarian law as embodied in that Convention– Need for the United Nations, and especially the General Assembly and the Security Council, toconsider what further action is required to bring to an end the illegal situation resulting from the con-struction of the wall and its associated régime, taking due account of the Advisory Opinion.

••• Construction of the wall must be placed in a more general context – Obligation of Israel

and Palestine scrupulously to observe international humanitarian law – Implementation in goodfaith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338(1973) – “Roadmap” – Need for efforts to be encouraged with a view to achieving as soon aspossible, on the basis of international law, a negotiated solution to the outstanding problems and theestablishment of a Palestinian State, with peace and security for all in the region.


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ADVISORY OPINION

Present: President SHI; Vice-President RANJEVA; Judges GUILLAUME, KOROMA, VERESHCHETIN,HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL,ELARABY, OWADA, SIMMA, TOMKA; Registrar COUVREUR.

On the legal consequences of the construction of a wall in the Occupied Palestinian Territory,THE COURT,Composed as above,Gives the following Advisory Opinion:

1. The question on which the advisory opinion of the Court has been requested is set forth inresolution ES-10/14 adopted by the General Assembly of the United Nations (hereinafter the“General Assembly”) on 8 December 2003 at its Tenth Emergency Special Session. By a letter dated8 December 2003 and received in the Registry by facsimile on 10 December 2003, the original ofwhich reached the Registry subsequently, the Secretary-General of the United Nations officiallycommunicated to the Court the decision taken by the General Assembly to submit the question foran advisory opinion. Certified true copies of the English and French versions of resolution ES-10/14were enclosed with the letter. The resolution reads as follows:

“The General Assembly,

Reaffirming its resolution ES-10/13 of 21 October 2003,

Guided by the principles of the Charter of the United Nations,

Aware of the established principle of international law on the inadmissibilityof the acquisition of territory by force,

Aware also that developing friendly relations among nations based on respectfor the principle of equal rights and self-determination of peoples is among the pur-poses and principles of the Charter of the United Nations,

Recalling relevant General Assembly resolutions, including resolution 181 (II)of 29 November 1947, which partitioned mandated Palestine into two States, oneArab and one Jewish,

Recalling also the resolutions of the tenth emergency special session of theGeneral Assembly,

Recalling further relevant Security Council resolutions, including resolu-tions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 267 (1969)of 3 July 1969, 298 (1971) of 25 September 1971, 446 (1979) of 22 March 1979,452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980, 476 (1980) of30 June 1980, 478 (1980) of 20 August 1980, 904 (1994) of 18 March 1994,1073 (1996) of 28 September 1996, 1397 (2002) of 12 March 2002 and 1515 (2003)of 19 November 2003,


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Reaffirming the applicability of the Fourth Geneva Convention1 as well asAdditional Protocol I to the Geneva Conventions2 to the Occupied PalestinianTerritory, including East Jerusalem,

Recalling the Regulations annexed to the Hague Convention Respecting theLaws and Customs of War on Land of 19073,

Welcoming the convening of the Conference of High Contracting Parties to theFourth Geneva Convention on measures to enforce the Convention in the OccupiedPalestinian Territory, including Jerusalem, at Geneva on 15 July 1999,

Expressing its support for the declaration adopted by the reconvened Conferenceof High Contracting Parties at Geneva on 5 December 2001,

Recalling in particular relevant United Nations resolutions affirming that Israelisettlements in the Occupied Palestinian Territory, including East Jerusalem, are ille-gal and an obstacle to peace and to economic and social development as well as thosedemanding the complete cessation of settlement activities,

Recalling relevant United Nations resolutions affirming that actions taken byIsrael, the occupying Power, to change the status and demographic composition ofOccupied East Jerusalem have no legal validity and are null and void,

Noting the agreements reached between the Government of Israel and thePalestine Liberation Organization in the context of the Middle East peace process,

Gravely concerned at the commencement and continuation of construction byIsrael, the occupying Power, of a wall in the Occupied Palestinian Territory, includ-ing in and around East Jerusalem, which is in departure from the Armistice Line of1949 (Green Line) and which has involved the confiscation and destruction ofPalestinian land and resources, the disruption of the lives of thousands of protectedcivilians and the de facto annexation of large areas of territory, and underlining theunanimous opposition by the international community to the construction of thatwall,

Gravely concerned also at the even more devastating impact of the projectedparts of the wall on the Palestinian civilian population and on the prospects for solv-ing the Palestinian-Israeli conflict and establishing peace in the region,

Welcoming the report of 8 September 2003 of the Special Rapporteur of theCommission on Human Rights on the situation of human rights in the Palestinian ter-ritories occupied by Israel since 19674, in particular the section regarding the wall,


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1 United Nations, Treaty Series, Vol. 75, No. 973.2 Ibid., Vol. 1125, No. 17512.3 See Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and

1907 (New York, Oxford University Press, 1915).4 E/CN.4/2004/6.


Affirming the necessity of ending the conflict on the basis of the two-State solu-tion of Israel and Palestine living side by side in peace and security based on theArmistice Line of 1949, in accordance with relevant Security Council and GeneralAssembly resolutions,

Having received with appreciation the report of the Secretary-General, sub-mitted in accordance with resolution ES-10/135,

Bearing in mind that the passage of time further compounds the difficulties onthe ground, as Israel, the occupying Power, continues to refuse to comply with inter-national law vis-à-vis its construction of the above-mentioned wall, with all its detri-mental implications and consequences,

Decides, in accordance with Article 96 of the Charter of the United Nations,to request the International Court of Justice, pursuant to Article 65 of the Statute ofthe Court, to urgently render an advisory opinion on the following question:

What are the legal consequences arising from the constructionof the wall being built by Israel, the occupying Power, in theOccupied Palestinian Territory, including in and around EastJerusalem, as described in the report of the Secretary-General, con-sidering the rules and principles of international law, including theFourth Geneva Convention of 1949, and relevant Security Counciland General Assembly resolutions?

Also enclosed with the letter were the certified English and French textsof the report of the Secretary-General dated 24 November 2003, preparedpursuant to General Assembly resolution ES-10/13 (A/ES-10/248), to whichresolution ES-10/14 makes reference.

2. By letters dated 10 December 2003, the Registrar notified the request for an advisory opin-ion to all States entitled to appear before the Court, in accordance with Article 66, paragraph 1, ofthe Statute.

3. By a letter dated 11 December 2003, the Government of Israel informed the Court of its posi-tion on the request for an advisory opinion and on the procedure to be followed.

4. By an Order of 19 December 2003, the Court decided that the United Nations and itsMember States were likely, in accordance with Article 66, paragraph 2, of the Statute, to be able tofurnish information on all aspects raised by the question submitted to the Court for an advisory opin-ion and fixed 30 January 2004 as the time-limit within which written statements might be submittedto it on the question in accordance with Article 66, paragraph 4, of the Statute. By the same Order,the Court further decided that, in the light of resolution ES-10/14 and the report of theSecretary-General transmitted with the request, and taking into account the fact that the GeneralAssembly had granted Palestine a special status of observer and that the latter was co-sponsor of the


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5 A/ES-10/248.”


draft resolution requesting the advisory opinion, Palestine might also submit a written statement onthe question within the above time-limit.

5. By the aforesaid Order, the Court also decided, in accordance with Article 105, paragraph 4,of the Rules of Court, to hold public hearings during which oral statements and comments might bepresented to it by the United Nations and its Member States, regardless of whether or not they hadsubmitted written statements, and fixed 23 February 2004 as the date for the opening of the said hear-ings. By the same Order, the Court decided that, for the reasons set out above (see paragraph 4),Palestine might also take part in the hearings. Lastly, it invited the United Nations and its MemberStates, as well as Palestine, to inform the Registry, by 13 February 2004 at the latest, if they wereintending to take part in the above-mentioned hearings. By letters of 19 December 2004, theRegistrar informed them of the Court’s decisions and transmitted to them a copy of the Order.

6. Ruling on requests submitted subsequently by the League of Arab States and theOrganization of the Islamic Conference, the Court decided, in accordance with Article 66 of itsStatute, that those two international organizations were likely to be able to furnish information on thequestion submitted to the Court, and that consequently they might for that purpose submit writtenstatements within the time-limit fixed by the Court in its Order of 19 December 2003 and take partin the hearings.

7. Pursuant to Article 65, paragraph 2, of the Statute, the Secretary-General of the UnitedNations communicated to the Court a dossier of documents likely to throw light upon the question.

8. By a reasoned Order of 30 January 2004 regarding its composition in the case, the Courtdecided that the matters brought to its attention by the Government of Israel in a letter of31 December 2003, and in a confidential letter of 15 January 2004 addressed to the President pur-suant to Article 34, paragraph 2, of the Rules of Court, were not such as to preclude Judge Elarabyfrom sitting in the case.

9. Within the time-limit fixed by the Court for that purpose, written statements were filed by,in order of their receipt: Guinea, Saudi Arabia, League of Arab States, Egypt, Cameroon, RussianFederation, Australia, Palestine, United Nations, Jordan, Kuwait, Lebanon, Canada, Syria,Switzerland, Israel, Yemen, United States of America, Morocco, Indonesia, Organization of theIslamic Conference, France, Italy, Sudan, South Africa, Germany, Japan, Norway, United Kingdom,Pakistan, Czech Republic, Greece, Ireland on its own behalf, Ireland on behalf of the EuropeanUnion, Cyprus, Brazil, Namibia, Malta, Malaysia, Netherlands, Cuba, Sweden, Spain, Belgium,Palau, Federated States of Micronesia, Marshall Islands, Senegal, Democratic People’s Republic ofKorea. Upon receipt of those statements, the Registrar transmitted copies thereof to the UnitedNations and its Member States, to Palestine, to the League of Arab States and to the Organization ofthe Islamic Conference.

10. Various communications were addressed to these latter by the Registry, concerning in par-ticular the measures taken for the organization of the oral proceedings. By communications of20 February 2004, the Registry transmitted a detailed timetable of the hearings to those of the latterwho, within the time-limit fixed for that purpose by the Court, had expressed their intention of tak-ing part in the aforementioned proceedings.


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11. Pursuant to Article 106 of the Rules of Court, the Court decided to make the written state-ments accessible to the public, with effect from the opening of the oral proceedings.

12. In the course of hearings held from 23 to 25 February 2004, the Court heard oral statements,in the following order, by:

For Palestine: H.E. Mr. Nasser Al-Kidwa, Ambassador, Permanent Observerof Palestine to the United Nations,

Ms Stephanie Koury, Member, Negotiations Support Unit,Counsel,

Mr. James Crawford, S.C., Whewell Professor of InternationalLaw, University of Cambridge, Member of theInstitute of International Law, Counsel andAdvocate,

Mr. Georges Abi-Saab, Professor of International Law,Graduate Institute of International Studies,Geneva, Member of the Institute of InternationalLaw, Counsel and Advocate,

Mr. Vaughan Lowe, Chichele Professor of International Law,University of Oxford, Counsel and Advocate,

Mr. Jean Salmon, Professor Emeritus of International Law,Université libre de Bruxelles, Member of theInstitute of International Law, Counsel andAdvocate;

For the Republic of South Africa: H.E. Mr. Aziz Pahad, Deputy Minister for Foreign Affairs, Headof Delegation,

Judge M. R. W. Madlanga, S.C.;

For the People’s Democratic Mr. Ahmed Laraba, Professor of International Law;Republic of Algeria:

For the Kingdom of Saudi Arabia: H.E. Mr. Fawzi A. Shobokshi, Ambassador and PermanentRepresentative of the Kingdom of Saudi Arabiato the United Nations in New York, Head ofDelegation;

For the People’s Republic H.E. Mr. Liaquat Ali Choudhury, Ambassador of the People’sof Bangladesh: Republic of Bangladesh to the Kingdom of the

Netherlands;For Belize: Mr. Jean-Marc Sorel, Professor at the University of Paris I

(Panthéon-Sorbonne);

For the Republic of Cuba: H.E. Mr. Abelardo Moreno Fernández, Deputy Minister forForeign Affairs;


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For the Republic of Indonesia: H.E. Mr. Mohammad Jusuf, Ambassador of the Republic ofIndonesia to the Kingdom of the Netherlands,Head of Delegation;

For the Hashemite Kingdom H.R.H. Ambassador Zeid Ra’ad Zeid Al-Hussein,of Jordan: Permanent Representative of the Hashemite Kingdom of

Jordan to the United Nations, New York, Head ofDelegation,

Sir Arthur Watts, K.C.M.G., Q.C., Senior Legal Adviser to theGovernment of the Hashemite Kingdom ofJordan;

For the Republic of Madagascar: H.E. Mr. Alfred Rambeloson, Permanent Representative ofMadagascar to the Office of the United Nationsat Geneva and to the Specialized Agencies, Headof Delegation;

For Malaysia: H.E. Datuk Seri Syed Hamid Albar, Foreign Minister ofMalaysia, Head of Delegation;

For the Republic of Senegal: H.E. Mr. Saliou Cissé, Ambassador of the Republic of Senegalto the Kingdom of the Netherlands, Head ofDelegation;

For the Republic of the Sudan: H.E. Mr. Abuelgasim A. Idris, Ambassador of the Republic ofthe Sudan to the Kingdom of the Netherlands;

For the League of Arab States: Mr. Michael Bothe, Professor of Law, Head of the Legal Team;

For the Organization of the H.E. Mr. Abdelouahed Belkeziz, Secretary General of theIslamic Conference: Organization of the Islamic Conference,

Ms Monique Chemillier-Gendreau, Professor ofPublic Law, University of Paris VII-DenisDiderot, as Counsel.

•••

13. When seised of a request for an advisory opinion, the Court must first consider whether ithas jurisdiction to give the opinion requested and whether, should the answer be in the affirmative,there is any reason why it should decline to exercise any such jurisdiction (see Legality of the Threator Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10).

•••

14. The Court will thus first address the question whether it possesses jurisdiction to give theadvisory opinion requested by the General Assembly on 8 December 2003. The competence of theCourt in this regard is based on Article 65, paragraph 1, of its Statute, according to which the Court“may give an advisory opinion on any legal question at the request of whatever body may be author-ized by or in accordance with the Charter of the United Nations to make such a request”. The Courthas already had occasion to indicate that:


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“It is . . . a precondition of the Court’s competence that the advisory opinionbe requested by an organ duly authorized to seek it under the Charter, that it berequested on a legal question, and that, except in the case of the General Assemblyor the Security Council, that question should be one arising within the scope of theactivities of the requesting organ.” (Application for Review of Judgement No. 273 ofthe United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982,pp. 333-334, para. 21.)

15. It is for the Court to satisfy itself that the request for an advisory opinion comes from anorgan or agency having competence to make it. In the present instance, the Court notes that theGeneral Assembly, which seeks the advisory opinion, is authorized to do so by Article 96, para-graph 1, of the Charter, which provides: “The General Assembly or the Security Council may requestthe International Court of Justice to give an advisory opinion on any legal question.”

16. Although the above-mentioned provision states that the General Assembly may seek anadvisory opinion “on any legal question”, the Court has sometimes in the past given certain indica-tions as to the relationship between the question the subject of a request for an advisory opinion andthe activities of the General Assembly (Interpretation of Peace Treaties with Bulgaria, Hungary andRomania, I.C.J. Reports 1950, p. 70; Legality of the Threat or Use of Nuclear Weapons, I.C.J.Reports 1996 (I), pp. 232 and 233, paras. 11 and 12).

17. The Court will so proceed in the present case. The Court would observe that Article 10 ofthe Charter has conferred upon the General Assembly a competence relating to “any questions or anymatters” within the scope of the Charter, and that Article 11, paragraph 2, has specifically providedit with competence on “questions relating to the maintenance of international peace and securitybrought before it by any Member of the United Nations . . .” and to make recommendations undercertain conditions fixed by those Articles. As will be explained below, the question of the construc-tion of the wall in the Occupied Palestinian Territory was brought before the General Assembly by anumber of Member States in the context of the Tenth Emergency Special Session of the Assembly,convened to deal with what the Assembly, in its resolution ES-10/2 of 25 April 1997, considered toconstitute a threat to international peace and security.

•••

18. Before further examining the problems of jurisdiction that have been raised in the presentproceedings, the Court considers it necessary to describe the events that led to the adoption ofresolution ES-10/14, by which the General Assembly requested an advisory opinion on the legalconsequences of the construction of the wall in the Occupied Palestinian Territory.

19. The Tenth Emergency Special Session of the General Assembly, at which that resolutionwas adopted, was first convened following the rejection by the Security Council, on 7 March and21 March 1997, as a result of negative votes by a permanent member, of two draft resolutions con-cerning certain Israeli settlements in the Occupied Palestinian Territory (see, respectively,S/1997/199 and S/PV.3747, and S/1997/241 and S/PV.3756). By a letter of 31 March 1997, theChairman of the Arab Group then requested “that an emergency special session of the General


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Assembly be convened pursuant to resolution 377 A (V) entitled ‘Uniting for Peace’” with a view todiscussing “Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied PalestinianTerritory” (letter dated 31 March 1997 from the Permanent Representative of Qatar to the UnitedNations addressed to the Secretary-General, A/ES-10/1, 22 April 1997, Annex). The majority ofMembers of the United Nations having concurred in this request, the first meeting of the TenthEmergency Special Session of the General Assembly took place on 24 April 1997 (see A/ES-10/1,22 April 1997). Resolution ES-10/2 was adopted the following day; the General Assembly therebyexpressed its conviction that:

“the repeated violation by Israel, the occupying Power, of international law and itsfailure to comply with relevant Security Council and General Assembly resolutionsand the agreements reached between the parties undermine the Middle East peaceprocess and constitute a threat to international peace and security”,

and condemned the “illegal Israeli actions” in occupied East Jerusalem and the rest of the OccupiedPalestinian Territory, in particular the construction of settlements in that territory. The TenthEmergency Special Session was then adjourned temporarily and has since been reconvened 11 times(on 15 July 1997, 13 November 1997, 17 March 1998, 5 February 1999, 18 October 2000,20 December 2001, 7 May 2002, 5 August 2002, 19 September 2003, 20 October 2003 and8 December 2003).

20. By a letter dated 9 October 2003, the Chairman of the Arab Group, on behalf of the StatesMembers of the League of Arab States, requested an immediate meeting of the Security Council toconsider the “grave and ongoing Israeli violations of international law, including internationalhumanitarian law, and to take the necessary measures in this regard” (letter of 9 October 2003 fromthe Permanent Representative of the Syrian Arab Republic to the United Nations to the President ofthe Security Council, S/2003/973, 9 October 2003). This letter was accompanied by a draft resolu-tion for consideration by the Council, which condemned as illegal the construction by Israel of a wallin the Occupied Palestinian Territory departing from the Armistice Line of 1949. The SecurityCouncil held its 4841st and 4842nd meetings on 14 October 2003 to consider the item entitled “Thesituation in the Middle East, including the Palestine question”. It then had before it another draft res-olution proposed on the same day by Guinea, Malaysia, Pakistan and the Syrian Arab Republic,which also condemned the construction of the wall. This latter draft resolution was put to a vote afteran open debate and was not adopted owing to the negative vote of a permanent member of theCouncil (S/PV.4841 and S/PV.4842).

On 15 October 2003, the Chairman of the Arab Group, on behalf of the States Members of theLeague of Arab States, requested the resumption of the Tenth Emergency Special Session of theGeneral Assembly to consider the item of “Illegal Israeli actions in Occupied East Jerusalem and therest of the Occupied Palestinian Territory” (A/ES-10/242); this request was supported by the Non-Aligned Movement (A/ES-10/243) and the Organization of the Islamic Conference Group at theUnited Nations (A/ES-10/244). The Tenth Emergency Special Session resumed its work on20 October 2003.

21. On 27 October 2003, the General Assembly adopted resolution ES-10/13, by which itdemanded that “Israel stop and reverse the construction of the wall in the Occupied Palestinian


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Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949and is in contradiction to relevant provisions of international law” (para. 1). In paragraph 3, theAssembly requested the Secretary-General “to report on compliance with the . . . resolution period-ically, with the first report on compliance with paragraph 1 [of that resolution] to be submitted with-in one month . . .”. The Tenth Emergency Special Session was temporarily adjourned and, on24 November 2003, the report of the Secretary-General prepared pursuant to General Assemblyresolution ES-10/13 (hereinafter the “report of the Secretary-General”) was issued (A/ES-10/248).

22. Meanwhile, on 19 November 2003, the Security Council adopted resolution 1515 (2003),by which it “Endorse[d] the Quartet Performance-based Roadmap to a Permanent Two-StateSolution to the Israeli-Palestinian Conflict”. The Quartet consists of representatives of the UnitedStates of America, the European Union, the Russian Federation and the United Nations. That reso-lution “Call[ed] on the parties to fulfil their obligations under the Roadmap in cooperation with theQuartet and to achieve the vision of two States living side by side in peace and security.” Neither the“Roadmap” nor resolution 1515 (2003) contained any specific provision concerning the constructionof the wall, which was not discussed by the Security Council in this context.

23. Nineteen days later, on 8 December 2003, the Tenth Emergency Special Session of theGeneral Assembly again resumed its work, following a new request by the Chairman of the ArabGroup, on behalf of the States Members of the League of Arab States, and pursuant toresolution ES-10/13 (letter dated 1 December 2003 to the President of the General Assembly fromthe Chargé d’affaires a.i. of the Permanent Mission of Kuwait to the United Nations, A/ES-10/249,2 December 2003). It was during the meeting convened on that day that resolution ES-10/14 request-ing the present Advisory Opinion was adopted.

•••

24. Having thus recalled the sequence of events that led to the adoption of resolution ES-10/14,the Court will now turn to the questions of jurisdiction that have been raised in the present proceed-ings. First, Israel has alleged that, given the active engagement of the Security Council with the sit-uation in the Middle East, including the Palestinian question, the General Assembly acted ultra viresunder the Charter when it requested an advisory opinion on the legal consequences of the construc-tion of the wall in the Occupied Palestinian Territory.

25. The Court has already indicated that the subject of the present request for an advisory opin-ion falls within the competence of the General Assembly under the Charter (see paragraphs 15-17above). However, Article 12, paragraph 1, of the Charter provides that:

“While the Security Council is exercising in respect of any dispute or situationthe functions assigned to it in the present Charter, the General Assembly shall notmake any recommendation with regard to that dispute or situation unless the SecurityCouncil so requests.”

A request for an advisory opinion is not in itself a “recommendation” by the General Assembly “withregard to [a] dispute or situation”. It has however been argued in this case that the adoption by theGeneral Assembly of resolution ES-10/14 was ultra vires as not in accordance with Article 12. The


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Court thus considers that it is appropriate for it to examine the significance of that Article, havingregard to the relevant texts and the practice of the United Nations.

26. Under Article 24 of the Charter the Security Council has “primary responsibility for themaintenance of international peace and security”. In that regard it can impose on States “an explic-it obligation of compliance if for example it issues an order or command . . . under Chapter VII” andcan, to that end, “require enforcement by coercive action” (Certain Expenses of the United Nations(Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, I.C.J. Reports 1962,p. 163). However, the Court would emphasize that Article 24 refers to a primary, but not necessari-ly exclusive, competence. The General Assembly does have the power, inter alia, under Article 14of the Charter, to “recommend measures for the peaceful adjustment” of various situations (CertainExpenses of the United Nations, ibid., p. 163). “[T]he only limitation which Article 14 imposes onthe General Assembly is the restriction found in Article 12, namely, that the Assembly should not rec-ommend measures while the Security Council is dealing with the same matter unless the Councilrequests it to do so.” (Ibid.).

27. As regards the practice of the United Nations, both the General Assembly and the SecurityCouncil initially interpreted and applied Article 12 to the effect that the Assembly could not make arecommendation on a question concerning the maintenance of international peace and security whilethe matter remained on the Council’s agenda. Thus the Assembly during its fourth session refusedto recommend certain measures on the question of Indonesia, on the ground, inter alia, that theCouncil remained seised of the matter (Official Records of the General Assembly, Fourth Session, AdHoc Political Committee, Summary Records of Meetings, 27 September-7 December 1949,56th Meeting, 3 December 1949, p. 339, para. 118). As for the Council, on a number of occasionsit deleted items from its agenda in order to enable the Assembly to deliberate on them (for example,in respect of the Spanish question (Official Records of the Security Council, First Year: SecondSeries, No. 21, 79th Meeting, 4 November 1946, p. 498), in connection with incidents on the Greekborder (Official Records of the Security Council, Second Year, No. 89, 202nd Meeting,15 September 1947, pp. 2404-2405) and in regard to the Island of Taiwan (Formosa) (OfficialRecords of the Security Council, Fifth Year, No. 48, 506th Meeting, 29 September 1950, p. 5)). Inthe case of the Republic of Korea, the Council decided on 31 January 1951 to remove the relevantitem from the list of matters of which it was seised in order to enable the Assembly to deliberate onthe matter (Official Records of the Security Council, Sixth Year, S/PV.531, 531st Meeting,31 January 1951, pp. 11-12, para. 57).

However, this interpretation of Article 12 has evolved subsequently. Thus the GeneralAssembly deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo(resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolu-tion 1913 (XVIII)) while those cases still appeared on the Council’s agenda, without the Councilhaving adopted any recent resolution concerning them. In response to a question posed by Peruduring the Twenty-third session of the General Assembly, the Legal Counsel of the United Nationsconfirmed that the Assembly interpreted the words “is exercising the functions” in Article 12 of theCharter as meaning “is exercising the functions at this moment” (Twenty-third General Assembly,Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). Indeed, the Court notes that there has


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been an increasing tendency over time for the General Assembly and the Security Council to deal inparallel with the same matter concerning the maintenance of international peace and security (see,for example, the matters involving Cyprus, South Africa, Angola, Southern Rhodesia and morerecently Bosnia and Herzegovina and Somalia). It is often the case that, while the Security Councilhas tended to focus on the aspects of such matters related to international peace and security, theGeneral Assembly has taken a broader view, considering also their humanitarian, social andeconomic aspects.

28. The Court considers that the accepted practice of the General Assembly, as it has evolved,is consistent with Article 12, paragraph 1, of the Charter.

The Court is accordingly of the view that the General Assembly, in adoptingresolution ES-10/14, seeking an advisory opinion from the Court, did not contravene the provisionsof Article 12, paragraph 1, of the Charter. The Court concludes that by submitting that request theGeneral Assembly did not exceed its competence.

29. It has however been contended before the Court that the present request for an advisoryopinion did not fulfil the essential conditions set by resolution 377 A (V), under which the TenthEmergency Special Session was convened and has continued to act. In this regard, it has been said,first, that “The Security Council was never seised of a draft resolution proposing that the Councilitself should request an advisory opinion from the Court on the matters now in contention”, and, thatspecific issue having thus never been brought before the Council, the General Assembly could notrely on any inaction by the Council to make such a request. Secondly, it has been claimed that, inadopting resolution 1515 (2003), which endorsed the “Roadmap”, before the adoption by the GeneralAssembly of resolution ES-10/14, the Security Council continued to exercise its responsibility forthe maintenance of international peace and security and that, as a result, the General Assembly wasnot entitled to act in its place. The validity of the procedure followed by the Tenth EmergencySpecial Session, especially the Session’s “rolling character” and the fact that its meeting was con-vened to deliberate on the request for the advisory opinion at the same time as the General Assemblywas meeting in regular session, has also been questioned.

30. The Court would recall that resolution 377 A (V) states that:

“if the Security Council, because of lack of unanimity of the permanent members,fails to exercise its primary responsibility for the maintenance of international peaceand security in any case where there appears to be a threat to the peace, breach of thepeace, or act of aggression, the General Assembly shall consider the matter immedi-ately with a view to making appropriate recommendations to Members for collectivemeasures . . .”

The procedure provided for by that resolution is premised on two conditions, namely that the Councilhas failed to exercise its primary responsibility for the maintenance of international peace and secu-rity as a result of a negative vote of one or more permanent members, and that the situation is one inwhich there appears to be a threat to the peace, breach of the peace, or act of aggression. The Courtmust accordingly ascertain whether these conditions were fulfilled as regards the convening of the


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Tenth Emergency Special Session of the General Assembly, in particular at the time when theAssembly decided to request an advisory opinion from the Court.

31. In the light of the sequence of events described in paragraphs 18 to 23 above, the Courtobserves that, at the time when the Tenth Emergency Special Session was convened in 1997, theCouncil had been unable to take a decision on the case of certain Israeli settlements in the OccupiedPalestinian Territory, due to negative votes of a permanent member; and that, as indicated in resolu-tion ES-10/2 (see paragraph 19 above), there existed a threat to international peace and security.

The Court further notes that, on 20 October 2003, the Tenth Emergency Special Session of theGeneral Assembly was reconvened on the same basis as in 1997 (see the statements by the repre-sentatives of Palestine and Israel, A/ES-10/PV.21, pp. 2 and 5), after the rejection by the SecurityCouncil, on 14 October 2003, again as a result of the negative vote of a permanent member, of a draftresolution concerning the construction by Israel of the wall in the Occupied Palestinian Territory.The Court considers that the Security Council again failed to act as contemplated in resolution377 A (V). It does not appear to the Court that the situation in this regard changed between20 October 2003 and 8 December 2003, since the Council neither discussed the construction of thewall nor adopted any resolution in that connection. Thus, the Court is of the view that, up to8 December 2003, the Council had not reconsidered the negative vote of 14 October 2003. It fol-lows that, during that period, the Tenth Emergency Special Session was duly reconvened and couldproperly be seised, under resolution 377 A (V), of the matter now before the Court.

32. The Court would also emphasize that, in the course of this Emergency Special Session,the General Assembly could adopt any resolution falling within the subject-matter for which theSession had been convened, and otherwise within its powers, including a resolution seeking theCourt’s opinion. It is irrelevant in that regard that no proposal had been made to the Security Councilto request such an opinion.

33. Turning now to alleged further procedural irregularities of the Tenth Emergency SpecialSession, the Court does not consider that the “rolling” character of that Session, namely the fact ofits having been convened in April 1997 and reconvened 11 times since then, has any relevance withregard to the validity of the request by the General Assembly. The Court observes in that regard thatthe Seventh Emergency Special Session of the General Assembly, having been convened on22 July 1980, was subsequently reconvened four times (on 20 April 1982, 25 June 1982,16 August 1982 and 24 September 1982), and that the validity of resolutions or decisions of theAssembly adopted under such circumstances was never disputed. Nor has the validity of any pre-vious resolutions adopted during the Tenth Emergency Special Session been challenged.

34. The Court also notes the contention by Israel that it was improper to reconvene the TenthEmergency Special Session at a time when the regular Session of the General Assembly was inprogress. The Court considers that, while it may not have been originally contemplated that it wouldbe appropriate for the General Assembly to hold simultaneous emergency and regular sessions, norule of the Organization has been identified which would be thereby violated, so as to render invalidthe resolution adopting the present request for an advisory opinion.


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35. Finally, the Tenth Emergency Special Session appears to have been convened in accordancewith Rule 9 (b) of the Rules of Procedure of the General Assembly, and the relevant meetings havebeen convened in pursuance of the applicable rules. As the Court stated in its Advisory Opinion of21 June 1971 concerning the Legal Consequences for States of the Continued Presence of SouthAfrica in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), a“resolution of a properly constituted organ of the United Nations which is passed in accordance withthat organ’s rules of procedure, and is declared by its President to have been so passed, must bepresumed to have been validly adopted” (I.C.J. Reports 1971, p. 22, para. 20). In view of the fore-going, the Court cannot see any reason why that presumption is to be rebutted in the present case.

•••

36. The Court now turns to a further issue related to jurisdiction in the present proceedings,namely the contention that the request for an advisory opinion by the General Assembly is not on a“legal question” within the meaning of Article 96, paragraph 1, of the Charter and Article 65, para-graph 1, of the Statute of the Court. It has been contended in this regard that, for a question to con-stitute a “legal question” for the purposes of these two provisions, it must be reasonably specific,since otherwise it would not be amenable to a response by the Court. With regard to the request madein the present advisory proceedings, it has been argued that it is not possible to determine with rea-sonable certainty the legal meaning of the question asked of the Court for two reasons.

First, it has been argued that the question regarding the “legal consequences” of the construc-tion of the wall only allows for two possible interpretations, each of which would lead to a course ofaction that is precluded for the Court. The question asked could first be interpreted as a request forthe Court to find that the construction of the wall is illegal, and then to give its opinion on the legalconsequences of that illegality. In this case, it has been contended, the Court should decline torespond to the question asked for a variety of reasons, some of which pertain to jurisdiction and oth-ers rather to the issue of propriety. As regards jurisdiction, it is said that, if the General Assemblyhad wished to obtain the view of the Court on the highly complex and sensitive question of the legal-ity of the construction of the wall, it should have expressly sought an opinion to that effect (cf.Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10,p. 17). A second possible interpretation of the request, it is said, is that the Court should assume thatthe construction of the wall is illegal, and then give its opinion on the legal consequences of thatassumed illegality. It has been contended that the Court should also decline to respond to the ques-tion on this hypothesis, since the request would then be based on a questionable assumption andsince, in any event, it would be impossible to rule on the legal consequences of illegality withoutspecifying the nature of that illegality.

Secondly, it has been contended that the question asked of the Court is not of a “legal” char-acter because of its imprecision and abstract nature. In particular, it has been argued in this regardthat the question fails to specify whether the Court is being asked to address legal consequences for“the General Assembly or some other organ of the United Nations”, “Member States of the UnitedNations”, “Israel”, “Palestine” or “some combination of the above, or some different entity”.

37. As regards the alleged lack of clarity of the terms of the General Assembly’s request andits effect on the “legal nature” of the question referred to the Court, the Court observes that this ques-


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tion is directed to the legal consequences arising from a given factual situation considering the rulesand principles of international law, including the Geneva Convention relative to the Protection ofCivilian Persons in Time of War of 12 August 1949 (hereinafter the “Fourth Geneva Convention”)and relevant Security Council and General Assembly resolutions. The question submitted by theGeneral Assembly has thus, to use the Court’s phrase in its Advisory Opinion on Western Sahara,“been framed in terms of law and raise[s] problems of international law”; it is by its very nature sus-ceptible of a reply based on law; indeed it is scarcely susceptible of a reply otherwise than on thebasis of law. In the view of the Court, it is indeed a question of a legal character (see Western Sahara,Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).

38. The Court would point out that lack of clarity in the drafting of a question does not deprivethe Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and suchnecessary clarifications of interpretation have frequently been given by the Court.

In the past, both the Permanent Court and the present Court have observed in some cases thatthe wording of a request for an advisory opinion did not accurately state the question on which theCourt’s opinion was being sought (Interpretation of the Greco-Turkish Agreement of 1 Decem-ber 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16 (I),pp. 14-16), or did not correspond to the “true legal question” under consideration (Interpretation ofthe Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports1980, pp. 87-89, paras. 34-36). The Court noted in one case that “the question put to the Court is,on the face of it, at once infelicitously expressed and vague” (Application for Review of JudgementNo. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982,p. 348, para. 46).

Consequently, the Court has often been required to broaden, interpret and even reformulatethe questions put (see the three Opinions cited above; see also Jaworzina, Advisory Opinion, 1923,P.C.I.J., Series B, No. 8; Admissibility of Hearings of Petitioners by the Committee on South WestAfrica, Advisory Opinion, I.C.J. Reports 1956, p. 25; Certain Expenses of the United Nations(Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 157-162).

In the present instance, the Court will only have to do what it has often done in the past, name-ly “identify the existing principles and rules, interpret them and apply them . . ., thus offering a replyto the question posed based on law” (Legality of the Threat or Use of Nuclear Weapons, I.C.J.Reports 1996 (I), p. 234, para. 13).

39. In the present instance, if the General Assembly requests the Court to state the “legal con-sequences” arising from the construction of the wall, the use of these terms necessarily encompass-es an assessment of whether that construction is or is not in breach of certain rules and principles ofinternational law. Thus, the Court is first called upon to determine whether such rules and principleshave been and are still being breached by the construction of the wall along the planned route.

40. The Court does not consider that what is contended to be the abstract nature of the ques-tion posed to it raises an issue of jurisdiction. Even when the matter was raised as an issue of pro-priety rather than one of jurisdiction, in the case concerning the Legality of the Threat or Use of


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Nuclear Weapons, the Court took the position that to contend that it should not deal with a questioncouched in abstract terms is “a mere affirmation devoid of any justification” and that “the Court maygive an advisory opinion on any legal question, abstract or otherwise” (I.C.J. Reports 1996 (I),p. 236, para. 15, referring to Conditions of Admission of a State to Membership in the United Nations(Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61; Effect of Awardsof Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J.Reports 1954, p. 51; and Legal Consequences for States of the Continued Presence of South Africain Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), AdvisoryOpinion, I.C.J. Reports 1971, p. 27, para. 40). In any event, the Court considers that the questionposed to it in relation to the legal consequences of the construction of the wall is not an abstract one,and moreover that it would be for the Court to determine for whom any such consequences arise.

41. Furthermore, the Court cannot accept the view, which has also been advanced in the pres-ent proceedings, that it has no jurisdiction because of the “political” character of the question posed.As is clear from its long-standing jurisprudence on this point, the Court considers that the fact that alegal question also has political aspects,

“as, in the nature of things, is the case with so many questions which arise in inter-national life, does not suffice to deprive it of its character as a ‘legal question’ and to‘deprive the Court of a competence expressly conferred on it by itsStatute’(Application for Review of Judgement No. 158 of the United NationsAdministrative Tribunal, Advisory Opinion, I.C.J, Reports 1973, p. 172, para. 14).Whatever its political aspects, the Court cannot refuse to admit the legal character ofa question which invites it to discharge an essentially judicial task, namely, an assess-ment of the legality of the possible conduct of States with regard to the obligationsimposed upon them by international law (cf. Conditions of Admission of a State toMembership in the United Nations (Article 4 of the Charter), Advisory Opinion,1948, I.C.J. Reports 1947-1948, pp. 61-62; Competence of the General Assembly forthe Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports1950, pp. 6-7; Certain Expenses of the United Nations (Article 17, paragraph 2, ofthe Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).” (Legality of the Threator Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13.)

In its Opinion concerning the Interpretation of the Agreement of 25 March 1951 between the WHOand Egypt, the Court indeed emphasized that, “in situations in which political considerations areprominent it may be particularly necessary for an international organization to obtain an advisoryopinion from the Court as to the legal principles applicable with respect to the matter underdebate . . .” (I.C.J. Reports 1980, p. 87, para. 33). Moreover, the Court has affirmed in its Opinionon the Legality of the Threat or Use of Nuclear Weapons that “the political nature of the motiveswhich may be said to have inspired the request and the political implications that the opinion givenmight have are of no relevance in the establishment of its jurisdiction to give such an opinion” (I.C.J.Reports 1996 (I), p. 234, para. 13). The Court is of the view that there is no element in the presentproceedings which could lead it to conclude otherwise.

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42. The Court accordingly has jurisdiction to give the advisory opinion requested by resolu-tion ES-10/14 of the General Assembly.

•••

43. It has been contended in the present proceedings, however, that the Court should declineto exercise its jurisdiction because of the presence of specific aspects of the General Assembly’srequest that would render the exercise of the Court’s jurisdiction improper and inconsistent with theCourt’s judicial function.

44. The Court has recalled many times in the past that Article 65, paragraph 1, of its Statute,which provides that “The Court may give an advisory opinion . . .” (emphasis added), should be inter-preted to mean that the Court has a discretionary power to decline to give an advisory opinion evenif the conditions of jurisdiction are met (Legality of the Threat or Use of Nuclear Weapons, AdvisoryOpinion, I.C.J. Reports 1996 (I), p. 234, para. 14). The Court however is mindful of the fact that itsanswer to a request for an advisory opinion “represents its participation in the activities of theOrganization, and, in principle, should not be refused” (Interpretation of Peace Treaties withBulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; seealso, for example, Difference Relating to Immunity from Legal Process of a Special Rapporteur ofthe Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78-79, para. 29.)Given its responsibilities as the “principal judicial organ of the United Nations” (Article 92 of theCharter), the Court should in principle not decline to give an advisory opinion. In accordance withits consistent jurisprudence, only “compelling reasons” should lead the Court to refuse its opinion(Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion,I.C.J. Reports 1962, p. 155; see also, for example, Difference Relating to Immunity from LegalProcess of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion, I.C.J.Reports 1999 (I), pp. 78-79, para. 29.)

The present Court has never, in the exercise of this discretionary power, declined to respondto a request for an advisory opinion. Its decision not to give the advisory opinion on the Legality ofthe Use by a State of Nuclear Weapons in Armed Conflict requested by the World HealthOrganization was based on the Court’s lack of jurisdiction, and not on considerations of judicial pro-priety (see I.C.J. Reports 1996 (I), p. 235, para. 14). Only on one occasion did the Court’s prede-cessor, the Permanent Court of International Justice, take the view that it should not reply to a ques-tion put to it (Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5), but thiswas due to

“the very particular circumstances of the case, among which were that the questiondirectly concerned an already existing dispute, one of the States parties to which wasneither a party to the Statute of the Permanent Court nor a Member of the League ofNations, objected to the proceedings, and refused to take part in any way” (Legalityof the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235-236,para. 14).

45. These considerations do not release the Court from the duty to satisfy itself, each time itis seised of a request for an opinion, as to the propriety of the exercise of its judicial function, by ref-


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erence to the criterion of “compelling reasons” as cited above. The Court will accordingly examinein detail and in the light of its jurisprudence each of the arguments presented to it in this regard.

•••

46. The first such argument is to the effect that the Court should not exercise its jurisdictionin the present case because the request concerns a contentious matter between Israel and Palestine,in respect of which Israel has not consented to the exercise of that jurisdiction. According to thisview, the subject-matter of the question posed by the General Assembly “is an integral part of thewider Israeli-Palestinian dispute concerning questions of terrorism, security, borders, settlements,Jerusalem and other related matters”. Israel has emphasized that it has never consented to the set-tlement of this wider dispute by the Court or by any other means of compulsory adjudication; on thecontrary, it contends that the parties repeatedly agreed that these issues are to be settled by negotia-tion, with the possibility of an agreement that recourse could be had to arbitration. It is accordinglycontended that the Court should decline to give the present Opinion, on the basis inter alia of theprecedent of the decision of the Permanent Court of International Justice on the Status of EasternCarelia.

47. The Court observes that the lack of consent to the Court’s contentious jurisdiction by inter-ested States has no bearing on the Court’s jurisdiction to give an advisory opinion. In an AdvisoryOpinion of 1950, the Court explained that:

“The consent of States, parties to a dispute, is the basis of the Court’sjurisdiction in contentious cases. The situation is different in regard to advisory pro-ceedings even where the Request for an Opinion relates to a legal question actuallypending between States. The Court’s reply is only of an advisory character: as such,it has no binding force. It follows that no State, whether a Member of the UnitedNations or not, can prevent the giving of an Advisory Opinion which the UnitedNations considers to be desirable in order to obtain enlightenment as to the course ofaction it should take. The Court’s Opinion is given not to the States, but to the organwhich is entitled to request it; the reply of the Court, itself an ‘organ of the UnitedNations’, represents its participation in the activities of the Organization, and, in prin-ciple, should not be refused.” (Interpretation of Peace Treaties with Bulgaria,Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71;see also Western Sahara, I.C.J. Reports 1975, p. 24, para. 31.)

It followed from this that, in those proceedings, the Court did not refuse to respond to the request foran advisory opinion on the ground that, in the particular circumstances, it lacked jurisdiction. TheCourt did however examine the opposition of certain interested States to the request by the GeneralAssembly in the context of issues of judicial propriety. Commenting on its 1950 decision, the Courtexplained in its Advisory Opinion on Western Sahara that it had “Thus . . . recognized that lack ofconsent might constitute a ground for declining to give the opinion requested if, in the circumstancesof a given case, considerations of judicial propriety should oblige the Court to refuse an opinion.”The Court continued:

“In certain circumstances . . . the lack of consent of an interested State mayrender the giving of an advisory opinion incompatible with the Court’s judicial char-


acter. An instance of this would be when the circumstances disclose that to give areply would have the effect of circumventing the principle that a State is not obligedto allow its disputes to be submitted to judicial settlement without its consent.”(Western Sahara, I.C.J. Reports 1975, p. 25, paras. 32-33.)

In applying that principle to the request concerning Western Sahara, the Court found that a legal con-troversy did indeed exist, but one which had arisen during the proceedings of the General Assemblyand in relation to matters with which the Assembly was dealing. It had not arisen independently inbilateral relations (ibid., p. 25, para. 34).

48. As regards the request for an advisory opinion now before it, the Court acknowledges thatIsrael and Palestine have expressed radically divergent views on the legal consequences of Israel’sconstruction of the wall, on which the Court has been asked to pronounce. However, as the Courthas itself noted, “Differences of views . . . on legal issues have existed in practically every advisoryproceeding” (Legal Consequences for States of the Continued Presence of South Africa in Namibia(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,I.C.J. Reports 1971, p. 24, para. 34).

49. Furthermore, the Court does not consider that the subject-matter of the General Assembly’srequest can be regarded as only a bilateral matter between Israel and Palestine. Given the powers andresponsibilities of the United Nations in questions relating to international peace and security, it isthe Court’s view that the construction of the wall must be deemed to be directly of concern to theUnited Nations. The responsibility of the United Nations in this matter also has its origin in theMandate and the Partition Resolution concerning Palestine (see paragraphs 70 and 71 below). Thisresponsibility has been described by the General Assembly as “a permanent responsibility towardsthe question of Palestine until the question is resolved in all its aspects in a satisfactory manner inaccordance with international legitimacy” (General Assembly resolution 57/107 of 3 De-cember 2002). Within the institutional framework of the Organization, this responsibility has beenmanifested by the adoption of many Security Council and General Assembly resolutions, and by thecreation of several subsidiary bodies specifically established to assist in the realization of the inalien-able rights of the Palestinian people.

50. The object of the request before the Court is to obtain from the Court an opinion whichthe General Assembly deems of assistance to it for the proper exercise of its functions. The opinionis requested on a question which is of particularly acute concern to the United Nations, and onewhich is located in a much broader frame of reference than a bilateral dispute. In the circumstances,the Court does not consider that to give an opinion would have the effect of circumventing theprinciple of consent to judicial settlement, and the Court accordingly cannot, in the exercise of itsdiscretion, decline to give an opinion on that ground.

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51. The Court now turns to another argument raised in the present proceedings in support ofthe view that it should decline to exercise its jurisdiction. Some participants have argued that anadvisory opinion from the Court on the legality of the wall and the legal consequences of its con-struction could impede a political, negotiated solution to the Israeli-Palestinian conflict. More par-


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ticularly, it has been contended that such an opinion could undermine the scheme of the “Roadmap”(see paragraph 22 above), which requires Israel and Palestine to comply with certain obligations invarious phases referred to therein. The requested opinion, it has been alleged, could complicate thenegotiations envisaged in the “Roadmap”, and the Court should therefore exercise its discretion anddecline to reply to the question put.

This is a submission of a kind which the Court has already had to consider several times inthe past. For instance, in its Advisory opinion on the Legality of the Threat or Use of NuclearWeapons, the Court stated:

“It has . . . been submitted that a reply from the Court in this case might adverse-ly affect disarmament negotiations and would, therefore, be contrary to the interestof the United Nations. The Court is aware that, no matter what might be its conclu-sions in any opinion it might give, they would have relevance for the continuingdebate on the matter in the General Assembly and would present an additional ele-ment in the negotiations on the matter. Beyond that, the effect of the opinion is amatter of appreciation. The Court has heard contrary positions advanced and thereare no evident criteria by which it can prefer one assessment to another.” (I.C.J.Reports 1996 (I), p. 237, para. 17; see also Western Sahara, I.C.J. Reports 1975,p. 37, para. 73.)

52. One participant in the present proceedings has indicated that the Court, if it were to givea response to the request, should in any event do so keeping in mind

“two key aspects of the peace process: the fundamental principle that permanentstatus issues must be resolved through negotiations; and the need during the interimperiod for the parties to fulfill their security responsibilities so that the peace processcan succeed”.

53. The Court is conscious that the “Roadmap”, which was endorsed by the Security Councilin resolution 1515 (2003) (see paragraph 22 above), constitutes a negotiating framework for theresolution of the Israeli-Palestinian conflict. It is not clear, however, what influence the Court’sopinion might have on those negotiations: participants in the present proceedings have expressed dif-fering views in this regard. The Court cannot regard this factor as a compelling reason to decline toexercise its jurisdiction.

54. It was also put to the Court by certain participants that the question of the construction ofthe wall was only one aspect of the Israeli-Palestinian conflict, which could not be properlyaddressed in the present proceedings. The Court does not however consider this a reason for it todecline to reply to the question asked. The Court is indeed aware that the question of the wall is partof a greater whole, and it would take this circumstance carefully into account in any opinion it mightgive. At the same time, the question that the General Assembly has chosen to ask of the Court is con-fined to the legal consequences of the construction of the wall, and the Court would only examineother issues to the extent that they might be necessary to its consideration of the question put to it.

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55. Several participants in the proceedings have raised the further argument that the Courtshould decline to exercise its jurisdiction because it does not have at its disposal the requisite factsand evidence to enable it to reach its conclusions. In particular, Israel has contended, referring to theAdvisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, thatthe Court could not give an opinion on issues which raise questions of fact that cannot be elucidat-ed without hearing all parties to the conflict. According to Israel, if the Court decided to give therequested opinion, it would be forced to speculate about essential facts and make assumptions aboutarguments of law. More specifically, Israel has argued that the Court could not rule on the legal con-sequences of the construction of the wall without enquiring, first, into the nature and scope of thesecurity threat to which the wall is intended to respond and the effectiveness of that response, and,second, into the impact of the construction for the Palestinians. This task, which would already bedifficult in a contentious case, would be further complicated in an advisory proceeding, particularlysince Israel alone possesses much of the necessary information and has stated that it chooses not toaddress the merits. Israel has concluded that the Court, confronted with factual issues impossible toclarify in the present proceedings, should use its discretion and decline to comply with the requestfor an advisory opinion.

56. The Court observes that the question whether the evidence available to it is sufficient togive an advisory opinion must be decided in each particular instance. In its Opinion concerning theInterpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J. Reports 1950, p. 72)and again in its Opinion on the Western Sahara, the Court made it clear that what is decisive in thesecircumstances is “whether the Court has before it sufficient information and evidence to enable it toarrive at a judicial conclusion upon any disputed questions of fact the determination of which is nec-essary for it to give an opinion in conditions compatible with its judicial character” (Western Sahara,I.C.J. Reports 1975, pp. 28-29, para. 46). Thus, for instance, in the proceedings concerning the Statusof Eastern Carelia, the Permanent Court of International Justice decided to decline to give anOpinion inter alia because the question put “raised a question of fact which could not be elucidatedwithout hearing both parties” (Interpretation of Peace Treaties with Bulgaria, Hungary andRomania, I.C.J. Reports 1950, p. 72; see Status of Eastern Carelia, P.C.I.J., Series B, No. 5, p. 28).On the other hand, in the Western Sahara Opinion, the Court observed that it had been provided withvery extensive documentary evidence of the relevant facts (I.C.J. Reports 1975, p. 29, para. 47).

57. In the present instance, the Court has at its disposal the report of the Secretary-General, aswell as a voluminous dossier submitted by him to the Court, comprising not only detailed informa-tion on the route of the wall but also on its humanitarian and socio-economic impact on thePalestinian population. The dossier includes several reports based on on-site visits by specialrapporteurs and competent organs of the United Nations. The Secretary-General has furthersubmitted to the Court a written statement updating his report, which supplemented the informationcontained therein. Moreover, numerous other participants have submitted to the Court written state-ments which contain information relevant to a response to the question put by the General Assembly.The Court notes in particular that Israel’s Written Statement, although limited to issues of jurisdic-tion and judicial propriety, contained observations on other matters, including Israel’s concerns interms of security, and was accompanied by corresponding annexes; many other documents issuedby the Israeli Government on those matters are in the public domain.


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58. The Court finds that it has before it sufficient information and evidence to enable it to givethe advisory opinion requested by the General Assembly. Moreover, the circumstance that othersmay evaluate and interpret these facts in a subjective or political manner can be no argument for acourt of law to abdicate its judicial task. There is therefore in the present case no lack of informa-tion such as to constitute a compelling reason for the Court to decline to give the requested opinion.

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59. In their written statements, some participants have also put forward the argument that theCourt should decline to give the requested opinion on the legal consequences of the construction ofthe wall because such opinion would lack any useful purpose. They have argued that the advisoryopinions of the Court are to be seen as a means to enable an organ or agency in need of legal clari-fication for its future action to obtain that clarification. In the present instance, the argument contin-ues, the General Assembly would not need an opinion of the Court because it has already declaredthe construction of the wall to be illegal and has already determined the legal consequences bydemanding that Israel stop and reverse its construction, and further, because the General Assemblyhas never made it clear how it intended to use the opinion.

60. As is clear from the Court’s jurisprudence, advisory opinions have the purpose of furnish-ing to the requesting organs the elements of law necessary for them in their action. In its Opinionconcerning Reservations to the Convention on the Prevention and Punishment of the Crime ofGenocide, the Court observed: “The object of this request for an Opinion is to guide the UnitedNations in respect of its own action.” (I.C.J. Reports 1951, p. 19.) Likewise, in its Opinion on theLegal Consequences for States of the Continued Presence of South Africa in Namibia (South WestAfrica) notwithstanding Security Council Resolution 276 (1970), the Court noted: “The request is putforward by a United Nations organ with reference to its own decisions and it seeks legal advice fromthe Court on the consequences and implications of these decisions.” (I.C.J. Reports 1971, p. 24,para. 32.) The Court found on another occasion that the advisory opinion it was to give would “fur-nish the General Assembly with elements of a legal character relevant to its further treatment of thedecolonization of Western Sahara” (Western Sahara, I.C.J. Reports 1975, p. 37, para. 72).

61. With regard to the argument that the General Assembly has not made it clear what use itwould make of an advisory opinion on the wall, the Court would recall, as equally relevant in thepresent proceedings, what it stated in its Opinion on the Legality of the Threat or Use of NuclearWeapons:

“Certain States have observed that the General Assembly has not explained tothe Court for what precise purposes it seeks the advisory opinion. Nevertheless, it isnot for the Court itself to purport to decide whether or not an advisory opinion isneeded by the Assembly for the performance of its functions. The General Assemblyhas the right to decide for itself on the usefulness of an opinion in the light of its ownneeds.” (I.C.J. Reports 1996 (I), p. 237, para. 16.)

62. It follows that the Court cannot decline to answer the question posed based on the groundthat its opinion would lack any useful purpose. The Court cannot substitute its assessment of the use-fulness of the opinion requested for that of the organ that seeks such opinion, namely the General


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Assembly. Furthermore, and in any event, the Court considers that the General Assembly has not yetdetermined all the possible consequences of its own resolution. The Court’s task would be to deter-mine in a comprehensive manner the legal consequences of the construction of the wall, while theGeneral Assembly – and the Security Council – may then draw conclusions from the Court’sfindings.

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63. Lastly, the Court will turn to another argument advanced with regard to the propriety of itsgiving an advisory opinion in the present proceedings. Israel has contended that Palestine, given itsresponsibility for acts of violence against Israel and its population which the wall is aimed at address-ing, cannot seek from the Court a remedy for a situation resulting from its own wrongdoing. In thiscontext, Israel has invoked the maxim nullus commodum capere potest de sua injuria propria, whichit considers to be as relevant in advisory proceedings as it is in contentious cases. Therefore, Israelconcludes, good faith and the principle of “clean hands” provide a compelling reason that should leadthe Court to refuse the General Assembly’s request.

64. The Court does not consider this argument to be pertinent. As was emphasized earlier,it was the General Assembly which requested the advisory opinion, and the opinion is to be given tothe General Assembly, and not to a specific State or entity.

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65. In the light of the foregoing, the Court concludes not only that it has jurisdiction to givean opinion on the question put to it by the General Assembly (see paragraph 42 above), but also thatthere is no compelling reason for it to use its discretionary power not to give that opinion.

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66. The Court will now address the question put to it by the General Assembly in resolu-tion ES-10/14. The Court recalls that the question is as follows:

“What are the legal consequences arising from the construction of the wallbeing built by Israel, the occupying Power, in the Occupied Palestinian Territory,including in and around East Jerusalem, as described in the report of theSecretary-General, considering the rules and principles of international law, includ-ing the Fourth Geneva Convention of 1949, and relevant Security Council andGeneral Assembly resolutions?”

67. As explained in paragraph 82 below, the “wall” in question is a complex construction, sothat that term cannot be understood in a limited physical sense. However, the other terms used, eitherby Israel (“fence”) or by the Secretary-General (“barrier”), are no more accurate if understood in thephysical sense. In this Opinion, the Court has therefore chosen to use the terminology employed bythe General Assembly.

The Court notes furthermore that the request of the General Assembly concerns the legal con-sequences of the wall being built “in the Occupied Palestinian Territory, including in and around EastJerusalem”. As also explained below (see paragraphs 79-84 below), some parts of the complex arebeing built, or are planned to be built, on the territory of Israel itself; the Court does not consider


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that it is called upon to examine the legal consequences arising from the construction of those partsof the wall.

68. The question put by the General Assembly concerns the legal consequences of the con-struction of the wall in the Occupied Palestinian Territory. However, in order to indicate those con-sequences to the General Assembly the Court must first determine whether or not the construction ofthat wall breaches international law (see paragraph 39 above). It will therefore make this determi-nation before dealing with the consequences of the construction.

69. To do so, the Court will first make a brief analysis of the status of the territory concerned,and will then describe the works already constructed or in course of construction in that territory. Itwill then indicate the applicable law before seeking to establish whether that law has been breached.

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70. Palestine was part of the Ottoman Empire. At the end of the First World War, a class“A” Mandate for Palestine was entrusted to Great Britain by the League of Nations, pursuant to para-graph 4 of Article 22 of the Covenant, which provided that:

“Certain communities, formerly belonging to the Turkish Empire have reacheda stage of development where their existence as independent nations can be provi-sionally recognized subject to the rendering of administrative advice and assistanceby a Mandatory until such time as they are able to stand alone.”

The Court recalls that in its Advisory Opinion on the International Status of South West Africa,speaking of mandates in general, it observed that “The Mandate was created, in the interest of theinhabitants of the territory, and of humanity in general, as an international institution with an inter-national object - a sacred trust of civilization.” (I.C.J. Reports 1950, p. 132.) The Court also heldin this regard that “two principles were considered to be of paramount importance: the principle ofnon-annexation and the principle that the well-being and development of . . . peoples [not yet able togovern themselves] form[ed] ‘a sacred trust of civilization’” (ibid., p. 131).

The territorial boundaries of the Mandate for Palestine were laid down by various instruments,in particular on the eastern border by a British memorandum of 16 September 1922 and anAnglo-Transjordanian Treaty of 20 February 1928.

71. In 1947 the United Kingdom announced its intention to complete evacuation of themandated territory by 1 August 1948, subsequently advancing that date to 15 May 1948. In themeantime, the General Assembly had on 29 November 1947 adopted resolution 181 (II) on the futuregovernment of Palestine, which “Recommends to the United Kingdom . . . and to all other Membersof the United Nations the adoption and implementation . . . of the Plan of Partition” of the territory,as set forth in the resolution, between two independent States, one Arab, the other Jewish, as well asthe creation of a special international régime for the City of Jerusalem. The Arab population ofPalestine and the Arab States rejected this plan, contending that it was unbalanced; on 14 May 1948,Israel proclaimed its independence on the strength of the General Assembly resolution; armedconflict then broke out between Israel and a number of Arab States and the Plan of Partition was notimplemented.


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72. By resolution 62 (1948) of 16 November 1948, the Security Council decided that “anarmistice shall be established in all sectors of Palestine” and called upon the parties directly involvedin the conflict to seek agreement to this end. In conformity with this decision, general armisticeagreements were concluded in 1949 between Israel and the neighbouring States through mediationby the United Nations. In particular, one such agreement was signed in Rhodes on 3 April 1949between Israel and Jordan. Articles V and VI of that Agreement fixed the armistice demarcation linebetween Israeli and Arab forces (often later called the “Green Line” owing to the colour used for iton maps; hereinafter the “Green Line”). Article III, paragraph 2, provided that “No element of the . . .military or para-military forces of either Party . . . shall advance beyond or pass over for any purposewhatsoever the Armistice Demarcation Lines . . .” It was agreed in Article VI, paragraph 8, that theseprovisions would not be “interpreted as prejudicing, in any sense, an ultimate political settlementbetween the Parties”. It was also stated that “the Armistice Demarcation Lines defined in articles Vand VI of [the] Agreement [were] agreed upon by the Parties without prejudice to future territorialsettlements or boundary lines or to claims of either Party relating thereto”. The Demarcation Linewas subject to such rectification as might be agreed upon by the parties.

73. In the 1967 armed conflict, Israeli forces occupied all the territories which had constitutedPalestine under British Mandate (including those known as the West Bank, lying to the east of theGreen Line).

74. On 22 November 1967, the Security Council unanimously adopted resolution 242 (1967),which emphasized the inadmissibility of acquisition of territory by war and called for the“Withdrawal of Israel armed forces from territories occupied in the recent conflict”, and“Termination of all claims or states of belligerency”.

75. From 1967 onwards, Israel took a number of measures in these territories aimed at chang-ing the status of the City of Jerusalem. The Security Council, after recalling on a number of occa-sions “the principle that acquisition of territory by military conquest is inadmissible”, condemnedthose measures and, by resolution 298 (1971) of 25 September 1971, confirmed in the clearest pos-sible terms that:

“all legislative and administrative actions taken by Israel to change the status of theCity of Jerusalem, including expropriation of land and properties, transfer of popula-tions and legislation aimed at the incorporation of the occupied section, are totallyinvalid and cannot change that status”.

Later, following the adoption by Israel on 30 July 1980 of the Basic Law making Jerusalemthe “complete and united” capital of Israel, the Security Council, by resolution 478 (1980) of20 August 1980, stated that the enactment of that Law constituted a violation of international law andthat “all legislative and administrative measures and actions taken by Israel, the occupying Power,which have altered or purport to alter the character and status of the Holy City of Jerusalem . . . arenull and void”. It further decided “not to recognize the ‘basic law’ and such other actions by Israelthat, as a result of this law, seek to alter the character and status of Jerusalem”.

76. Subsequently, a peace treaty was signed on 26 October 1994 between Israel and Jordan.


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That treaty fixed the boundary between the two States “with reference to the boundary definitionunder the Mandate as is shown in Annex I (a) . . . without prejudice to the status of any territoriesthat came under Israeli military government control in 1967” (Article 3, paragraphs 1 and 2).Annex I provided the corresponding maps and added that, with regard to the “territory that cameunder Israeli military government control in 1967”, the line indicated “is the administrative bound-ary” with Jordan.

77. Lastly, a number of agreements have been signed since 1993 between Israel and thePalestine Liberation Organization imposing various obligations on each party. Those agreementsinter alia required Israel to transfer to Palestinian authorities certain powers and responsibilities exer-cised in the Occupied Palestinian Territory by its military authorities and civil administration. Suchtransfers have taken place, but, as a result of subsequent events, they remained partial and limited.

78. The Court would observe that, under customary international law as reflected (see para-graph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of War on Landannexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulationsof 1907”), territory is considered occupied when it is actually placed under the authority of the hos-tile army, and the occupation extends only to the territory where such authority has been establishedand can be exercised.

The territories situated between the Green Line (see paragraph 72 above) and the former east-ern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed con-flict between Israel and Jordan. Under customary international law, these were therefore occupiedterritories in which Israel had the status of occupying Power. Subsequent events in these territories,as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these terri-tories (including East Jerusalem) remain occupied territories and Israel has continued to have the sta-tus of occupying Power.

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79. It is essentially in these territories that Israel has constructed or plans to construct the worksdescribed in the report of the Secretary-General. The Court will now describe those works, basingitself on that report. For developments subsequent to the publication of that report, the Court willrefer to complementary information contained in the Written Statement of the United Nations, whichwas intended by the Secretary-General to supplement his report (hereinafter “Written Statement ofthe Secretary-General”).

80. The report of the Secretary-General states that “The Government of Israel has since 1996considered plans to halt infiltration into Israel from the central and northern West Bank . . .”(Para. 4.) According to that report, a plan of this type was approved for the first time by the IsraeliCabinet in July 2001. Then, on 14 April 2002, the Cabinet adopted a decision for the construction ofworks, forming what Israel describes as a “security fence”, 80 kilometres in length, in three areas ofthe West Bank.

The project was taken a stage further when, on 23 June 2002, the Israeli Cabinet approved thefirst phase of the construction of a “continuous fence” in the West Bank (including East Jerusalem).


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On 14 August 2002, it adopted the line of that “fence” for the work in Phase A, with a view to theconstruction of a complex 123 kilometres long in the northern West Bank, running from the Salemcheckpoint (north of Jenin) to the settlement at Elkana. Phase B of the work was approved inDecember 2002. It entailed a stretch of some 40 kilometres running east from the Salem checkpointtowards Beth Shean along the northern part of the Green Line as far as the Jordan Valley.Furthermore, on 1 October 2003, the Israeli Cabinet approved a full route, which, according to thereport of the Secretary-General, “will form one continuous line stretching 720 kilometres along theWest Bank”. A map showing completed and planned sections was posted on the Israeli Ministry ofDefence website on 23 October 2003. According to the particulars provided on that map, a continu-ous section (Phase C) encompassing a number of large settlements will link the north-western end ofthe “security fence” built around Jerusalem with the southern point of Phase A construction atElkana. According to the same map, the “security fence” will run for 115 kilometres from theHar Gilo settlement near Jerusalem to the Carmel settlement south-east of Hebron (Phase D).According to Ministry of Defence documents, work in this sector is due for completion in 2005.Lastly, there are references in the case file to Israel’s planned construction of a “security fence” fol-lowing the Jordan Valley along the mountain range to the west.

81. According to the Written Statement of the Secretary-General, the first part of theseworks (Phase A), which ultimately extends for a distance of 150 kilometres, was declared complet-ed on 31 July 2003. It is reported that approximately 56,000 Palestinians would be encompassed inenclaves. During this phase, two sections totalling 19.5 kilometres were built around Jerusalem. InNovember 2003 construction of a new section was begun along the Green Line to the west of theNazlat Issa-Baqa al-Sharqiya enclave, which in January 2004 was close to completion at the timewhen the Secretary-General submitted his Written Statement.

According to the Written Statement of the Secretary-General, the works carried out underPhase B were still in progress in January 2004. Thus an initial section of this stretch, which runs nearor on the Green Line to the village of al-Mutilla, was almost complete in January 2004. Two addi-tional sections diverge at this point. Construction started in early January 2004 on one section thatruns due east as far as the Jordanian border. Construction of the second section, which is planned torun from the Green Line to the village of Taysir, has barely begun. The United Nations has, how-ever, been informed that this second section might not be built.

The Written Statement of the Secretary-General further states that Phase C of the work, whichruns from the terminus of Phase A, near the Elkana settlement, to the village of Nu’man, south-eastof Jerusalem, began in December 2003. This section is divided into three stages. In Stage C1,between inter alia the villages of Rantis and Budrus, approximately 4 kilometres out of a plannedtotal of 40 kilometres have been constructed. Stage C2, which will surround the so-called “ArielSalient” by cutting 22 kilometres into the West Bank, will incorporate 52,000 Israeli settlers.Stage C3 is to involve the construction of two “depth barriers”; one of these is to run north-south,roughly parallel with the section of Stage C1 currently under construction between Rantis andBudrus, whilst the other runs east-west along a ridge said to be part of the route of Highway 45, amotorway under construction. If construction of the two barriers were completed, two enclaveswould be formed, encompassing 72,000 Palestinians in 24 communities.


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Further construction also started in late November 2003 along the south-eastern part of themunicipal boundary of Jerusalem, following a route that, according to the Written Statement of theSecretary-General, cuts off the suburban village of El-Ezariya from Jerusalem and splits the neigh-bouring Abu Dis in two.

As at 25 January 2004, according to the Written Statement of the Secretary-General, some190 kilometres of construction had been completed, covering Phase A and the greater part ofPhase B. Further construction in Phase C had begun in certain areas of the central West Bank and inJerusalem. Phase D, planned for the southern part of the West Bank, had not yet begun.

The Israeli Government has explained that the routes and timetable as described above aresubject to modification. In February 2004, for example, an 8-kilometre section near the town ofBaqa al-Sharqiya was demolished, and the planned length of the wall appears to have been slightlyreduced.

82. According to the description in the report and the Written Statement of theSecretary-General, the works planned or completed have resulted or will result in a complex con-sisting essentially of:

(1) a fence with electronic sensors;

(2) a ditch (up to 4 metres deep);

(3) a two-lane asphalt patrol road;

(4) a trace road (a strip of sand smoothed to detect footprints) running parallel to the fence;(5) a stack of six coils of barbed wire marking the perimeter of the complex.

The complex has a width of 50 to 70 metres, increasing to as much as 100 metres in someplaces. “Depth barriers” may be added to these works.

The approximately 180 kilometres of the complex completed or under construction as of thetime when the Secretary-General submitted his report included some 8.5 kilometres of concretewall. These are generally found where Palestinian population centres are close to or abut Israel (suchas near Qalqiliya and Tulkarm or in parts of Jerusalem).

83. According to the report of the Secretary-General, in its northernmost part, the wall as com-pleted or under construction barely deviates from the Green Line. It nevertheless lies within occu-pied territories for most of its course. The works deviate more than 7.5 kilometres from the GreenLine in certain places to encompass settlements, while encircling Palestinian population areas. Astretch of 1 to 2 kilometres west of Tulkarm appears to run on the Israeli side of the Green Line.Elsewhere, on the other hand, the planned route would deviate eastward by up to 22 kilometres. Inthe case of Jerusalem, the existing works and the planned route lie well beyond the Green Line andeven in some cases beyond the eastern municipal boundary of Jerusalem as fixed by Israel.

84. On the basis of that route, approximately 975 square kilometres (or 16.6 per cent of theWest Bank) would, according to the report of the Secretary-General, lie between the Green Line andthe wall. This area is stated to be home to 237,000 Palestinians. If the full wall were completed asplanned, another 160,000 Palestinians would live in almost completely encircled communities,


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described as enclaves in the report. As a result of the planned route, nearly 320,000 Israeli settlers(of whom 178,000 in East Jerusalem) would be living in the area between the Green Line and thewall.

85. Lastly, it should be noted that the construction of the wall has been accompanied by thecreation of a new administrative régime. Thus in October 2003 the Israeli Defence Forces issuedOrders establishing the part of the West Bank lying between the Green Line and the wall as a “ClosedArea”. Residents of this area may no longer remain in it, nor may non-residents enter it, unless hold-ing a permit or identity card issued by the Israeli authorities. According to the report of theSecretary-General, most residents have received permits for a limited period. Israeli citizens, Israelipermanent residents and those eligible to immigrate to Israel in accordance with the Law of Returnmay remain in, or move freely to, from and within the Closed Area without a permit. Access to andexit from the Closed Area can only be made through access gates, which are opened infrequently andfor short periods.

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86. The Court will now determine the rules and principles of international law which are rel-evant in assessing the legality of the measures taken by Israel. Such rules and principles can be foundin the United Nations Charter and certain other treaties, in customary international law and in the rel-evant resolutions adopted pursuant to the Charter by the General Assembly and the SecurityCouncil. However, doubts have been expressed by Israel as to the applicability in the OccupiedPalestinian Territory of certain rules of international humanitarian law and human rights instru-ments. The Court will now consider these various questions.

87. The Court first recalls that, pursuant to Article 2, paragraph 4, of the United Nations Charter:

“All Members shall refrain in their international relations from the threat oruse of force against the territorial integrity or political independence of any State, orin any other manner inconsistent with the Purposes of the United Nations.”

On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled “Declarationon Principles of International Law concerning Friendly Relations and Co-operation among States”(hereinafter “resolution 2625 (XXV)”), in which it emphasized that “No territorial acquisition result-ing from the threat or use of force shall be recognized as legal.” As the Court stated in its Judgmentin the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States of America), the principles as to the use of force incorporated in the Charter reflect cus-tomary international law (see I.C.J. Reports 1986, pp. 98-101, paras. 187-190); the same is true ofits corollary entailing the illegality of territorial acquisition resulting from the threat or use of force.

88. The Court also notes that the principle of self-determination of peoples has been enshrinedin the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV)cited above, pursuant to which “Every State has the duty to refrain from any forcible action whichdeprives peoples referred to [in that resolution] . . . of their right to self-determination.” Article 1common to the International Covenant on Economic, Social and Cultural Rights and theInternational Covenant on Civil and Political Rights reaffirms the right of all peoples to self-deter-


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mination, and lays upon the States parties the obligation to promote the realization of that right andto respect it, in conformity with the provisions of the United Nations Charter.

The Court would recall that in 1971 it emphasized that current developments in “internation-al law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations,made the principle of self-determination applicable to all [such territories]”. The Court went on tostate that “These developments leave little doubt that the ultimate objective of the sacred trust”referred to in Article 22, paragraph 1, of the Covenant of the League of Nations “was the self-deter-mination . . . of the peoples concerned” (Legal Consequences for States of the Continued Presenceof South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, paras. 52-53). The Court has referred to thisprinciple on a number of occasions in its jurisprudence (ibid.; see also Western Sahara, AdvisoryOpinion, I.C.J. Reports 1975, p. 68, para. 162). The Court indeed made it clear that the right of peo-ples to self-determination is today a right erga omnes (see East Timor (Portugal v. Australia),Judgment, I.C.J. Reports 1995, p. 102, para. 29).

89. As regards international humanitarian law, the Court would first note that Israel is not aparty to the Fourth Hague Convention of 1907, to which the Hague Regulations are annexed. TheCourt observes that, in the words of the Convention, those Regulations were prepared “to revise thegeneral laws and customs of war” existing at that time. Since then, however, the InternationalMilitary Tribunal of Nuremberg has found that the “rules laid down in the Convention were recog-nised by all civilised nations, and were regarded as being declaratory of the laws and customs of war”(Judgment of the International Military Tribunal of Nuremberg, 30 September and 1 October 1946,p. 65). The Court itself reached the same conclusion when examining the rights and duties of bel-ligerents in their conduct of military operations (Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75). The Court considers that the provisionsof the Hague Regulations have become part of customary law, as is in fact recognized by all the par-ticipants in the proceedings before the Court.

The Court also observes that, pursuant to Article 154 of the Fourth Geneva Convention, thatConvention is supplementary to Sections II and III of the Hague Regulations. Section III of thoseRegulations, which concerns “Military authority over the territory of the hostile State”, is particularlypertinent in the present case.

90. Secondly, with regard to the Fourth Geneva Convention, differing views have beenexpressed by the participants in these proceedings. Israel, contrary to the great majority of the otherparticipants, disputes the applicability de jure of the Convention to the Occupied PalestinianTerritory. In particular, in paragraph 3 of Annex I to the report of the Secretary-General, entitled“Summary Legal Position of the Government of Israel”, it is stated that Israel does not agree that theFourth Geneva Convention “is applicable to the occupied Palestinian Territory”, citing “the lack ofrecognition of the territory as sovereign prior to its annexation by Jordan and Egypt” and inferringthat it is “not a territory of a High Contracting Party as required by the Convention”.

91. The Court would recall that the Fourth Geneva Convention was ratified by Israel on6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party thereto since


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29 May 1951. Neither of the two States has made any reservation that would be pertinent to thepresent proceedings.

Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to applythe fourth Geneva Convention. Switzerland, as Deositary State, considered that unilateral undertak-ing valid. It concluded, however, that it “[was] not – as a depositary – in a position to decidewhether” “the request [dated 14 June 1989] from the Palestine Liberation Movement in the name ofthe ‘State of Palestine’ to accede” inter alia to the Fourth Geneva Convention “can be considered asan instrument of accession”.

92. Moreover, for the purpose of determining the scope of application of the Fourth GenevaConvention, it should be recalled that under common Article 2 of the four Conventions of12 August 1949:

“In addition to the provisions which shall be implemented in peacetime, thepresent Convention shall apply to all cases of declared war or of any other armedconflict which may arise between two or more of the High Contracting Parties, evenif the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation ofthe territory of a High Contracting Party, even if the said occupation meets with noarmed resistance.

Although one of the Powers in conflict may not be a party to the presentConvention, the Powers who are parties thereto shall remain bound by it in theirmutual relations. They shall furthermore be bound by the Convention in relation tothe said Power, if the latter accepts and applies the provisions thereof.”

93. After the occupation of the West Bank in 1967, the Israeli authorities issued an order No. 3stating in its Article 35 that:

“the Military Court . . . must apply the provisions of the Geneva Convention dated12 August 1949 relative to the Protection of Civilian Persons in Time of War withrespect to judicial procedures. In case of conflict between this Order and the saidConvention, the Convention shall prevail.”

Subsequently, the Israeli authorities have indicated on a number of occasions that in fact they gener-ally apply the humanitarian provisions of the Fourth Geneva Convention within the occupied terri-tories. However, according to Israel’s position as briefly recalled in paragraph 90 above, thatConvention is not applicable de jure within those territories because, under Article 2, paragraph 2, itapplies only in the case of occupation of territories falling under the sovereignty of a HighContracting Party involved in an armed conflict. Israel explains that Jordan was admittedly a partyto the Fourth Geneva Convention in 1967, and that an armed conflict broke out at that time betweenIsrael and Jordan, but it goes on to observe that the territories occupied by Israel subsequent to thatconflict had not previously fallen under Jordanian sovereignty. It infers from this that thatConvention is not applicable de jure in those territories. According however to the great majority ofother participants in the proceedings, the Fourth Geneva Convention is applicable to those territories


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pursuant to Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to1967.

94. The Court would recall that, according to customary international law as expressed inArticle 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be inter-preted in good faith in accordance with the ordinary meaning to be given to its terms in their contextand in the light of its object and purpose. Article 32 provides that:

“Recourse may be had to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order toconfirm the meaning resulting from the application of article 31, or to determine themeaning when the interpretation according to article 31 . . . leaves the meaningambiguous or obscure; or . . . leads to a result which is manifestly obscure or unrea-sonable.” (See Oil Platforms (Islamic Republic of Iran v. United States of America),Preliminary Objections, I.C.J. Reports 1996 (II), p. 812, para. 23; see, similarly,Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059,para. 18, and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.)

95. The Court notes that, according to the first paragraph of Article 2 of the Fourth GenevaConvention, that Convention is applicable when two conditions are fulfilled: that there exists anarmed conflict (whether or not a state of war has been recognized); and that the conflict has arisenbetween two contracting parties. If those two conditions are satisfied, the Convention applies, in par-ticular, in any territory occupied in the course of the conflict by one of the contracting parties.

The object of the second paragraph of Article 2 is not to restrict the scope of application of theConvention, as defined by the first paragraph, by excluding therefrom territories not falling under thesovereignty of one of the contracting parties. It is directed simply to making it clear that, even ifoccupation effected during the conflict met no armed resistance, the Convention is still applicable.

This interpretation reflects the intention of the drafters of the Fourth Geneva Convention toprotect civilians who find themselves, in whatever way, in the hands of the occupying Power. Whilstthe drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights ofa State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters ofthe Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regard-less of the status of the occupied territories, as is shown by Article 47 of the Convention.

That interpretation is confirmed by the Convention’s travaux préparatoires. The Conferenceof Government Experts convened by the International Committee of the Red Cross (hereinafter,“ICRC”) in the aftermath of the Second World War for the purpose of preparing the new GenevaConventions recommended that these conventions be applicable to any armed conflict “whether [it]is or is not recognized as a state of war by the parties” and “in cases of occupation of territories inthe absence of any state of war” (Report on the Work of the Conference of Government Experts forthe Study of the Conventions for the Protection of War Victims, Geneva, 14-26 April 1947, p. 8). Thedrafters of the second paragraph of Article 2 thus had no intention, when they inserted that paragraphinto the Convention, of restricting the latter’s scope of application. They were merely seeking to pro-


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vide for cases of occupation without combat, such as the occupation of Bohemia and Moravia byGermany in 1939.

96. The Court would moreover note that the States parties to the Fourth Geneva Conventionapproved that interpretation at their Conference on 15 July 1999. They issued a statement in whichthey “reaffirmed the applicability of the Fourth Geneva Convention to the Occupied PalestinianTerritory, including East Jerusalem”. Subsequently, on 5 December 2001, the High ContractingParties, referring in particular to Article 1 of the Fourth Geneva Convention of 1949, once againreaffirmed the “applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory,including East Jerusalem”. They further reminded the Contracting Parties participating in theConference, the parties to the conflict, and the State of Israel as occupying Power, of their respectiveobligations.

97. Moreover, the Court would observe that the ICRC, whose special position with respect toexecution of the Fourth Geneva Convention must be “recognized and respected at all times” by theparties pursuant to Article 142 of the Convention, has also expressed its opinion on the interpretationto be given to the Convention. In a declaration of 5 December 2001, it recalled that “the ICRC hasalways affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupiedsince 1967 by the State of Israel, including East Jerusalem”.

98. The Court notes that the General Assembly has, in many of its resolutions, taken a posi-tion to the same effect. Thus on 10 December 2001 and 9 December 2003, in resolutions 56/60 and58/97, it reaffirmed “that the Geneva Convention relative to the Protection of Civilian Persons inTime of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including EastJerusalem, and other Arab territories occupied by Israel since 1967”.

99. The Security Council, for its part, had already on 14 June 1967 taken the view in resolu-tion 237 (1967) that “all the obligations of the Geneva Convention relative to the Treatment ofPrisoners of War . . . should be complied with by the parties involved in the conflict”. Subsequently,on 15 September 1969, the Security Council, in resolution 271 (1969), called upon “Israel scrupu-lously to observe the provisions of the Geneva Conventions and international law governing militaryoccupation”.

Ten years later, the Security Council examined “the policy and practices of Israel in estab-lishing settlements in the Palestinian and other Arab territories occupied since 1967”. In resolu-tion 446 (1979) of 22 March 1979, the Security Council considered that those settlements had “nolegal validity” and affirmed “once more that the Geneva Convention relative to the Protection ofCivilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied byIsrael since 1967, including Jerusalem”. It called “once more upon Israel, as the occupying Power,to abide scrupulously” by that Convention.

On 20 December 1990, the Security Council, in resolution 681 (1990), urged “the Governmentof Israel to accept the de jure applicability of the Fourth Geneva Convention . . . to all the territoriesoccupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention”. It fur-ther called upon “the high contracting parties to the said Fourth Geneva Convention to ensure respect


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by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1thereof”.

Lastly, in resolutions 799 (1992) of 18 December 1992 and 904 (1994) of 18 March 1994, theSecurity Council reaffirmed its position concerning the applicability of the Fourth GenevaConvention in the occupied territories.

100. The Court would note finally that the Supreme Court of Israel, in a judgment dated30 May 2004, also found that:

“The military operations of the [Israeli Defence Forces] in Rafah, to the extentthey affect civilians, are governed by Hague Convention IV Respecting the Laws andCustoms of War on Land 1907 . . . and the Geneva Convention Relative to theProtection of Civilian Persons in Time of War 1949.”

101. In view of the foregoing, the Court considers that the Fourth Geneva Convention isapplicable in any occupied territory in the event of an armed conflict arising between two or moreHigh Contracting Parties. Israel and Jordan were parties to that Convention when the 1967 armedconflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinianterritories which before the conflict lay to the east of the Green Line and which, during that conflict,were occupied by Israel, there being no need for any enquiry into the precise prior status of thoseterritories.

••• 102. The participants in the proceedings before the Court also disagree whether the interna-

tional human rights conventions to which Israel is party apply within the Occupied PalestinianTerritory. Annex I to the report of the Secretary-General states:

“4. Israel denies that the International Covenant on Civil and Political Rightsand the International Covenant on Economic, Social and Cultural Rights, both ofwhich it has signed, are applicable to the occupied Palestinian territory. It asserts thathumanitarian law is the protection granted in a conflict situation such as the one inthe West Bank and Gaza Strip, whereas human rights treaties were intended for theprotection of citizens from their own Government in times of peace.”

Of the other participants in the proceedings, those who addressed this issue contend that, onthe contrary, both Covenants are applicable within the Occupied Palestinian Territory.

103. On 3 October 1991 Israel ratified both the International Covenant on Economic, Socialand Cultural Rights of 19 December 1966 and the International Covenant on Civil and PoliticalRights of the same date, as well as the United Nations Convention on the Rights of the Child of20 November 1989. It is a party to these three instruments.

104. In order to determine whether these texts are applicable in the Occupied PalestinianTerritory, the Court will first address the issue of the relationship between international humanitari-an law and human rights law and then that of the applicability of human rights instruments outsidenational territory.


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105. In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of NuclearWeapons, the Court had occasion to address the first of these issues in relation to the InternationalCovenant on Civil and Political Rights. In those proceedings certain States had argued that “theCovenant was directed to the protection of human rights in peacetime, but that questions relating tounlawful loss of life in hostilities were governed by the law applicable in armed conflict” (I.C.J.Reports 1996 (I), p. 239, para. 24).

The Court rejected this argument, stating that:

“the protection of the International Covenant of Civil and Political Rights does notcease in times of war, except by operation of Article 4 of the Covenant whereby cer-tain provisions may be derogated from in a time of national emergency. Respect forthe right to life is not, however, such a provision. In principle, the right not arbitrar-ily to be deprived of one’s life applies also in hostilities. The test of what is an arbi-trary deprivation of life, however, then falls to be determined by the applicable lexspecialis, namely, the law applicable in armed conflict which is designed to regulatethe conduct of hostilities.” (Ibid., p. 240, para. 25.)

106. More generally, the Court considers that the protection offered by human rights conven-tions does not cease in case of armed conflict, save through the effect of provisions for derogation ofthe kind to be found in Article 4 of the International Covenant on Civil and Political Rights. Asregards the relationship between international humanitarian law and human rights law, there are thusthree possible situations: some rights may be exclusively matters of international humanitarian law;others may be exclusively matters of human rights law; yet others may be matters of both thesebranches of international law. In order to answer the question put to it, the Court will have to takeinto consideration both these branches of international law, namely human rights law and, as lexspecialis, international humanitarian law.

107. It remains to be determined whether the two international Covenants and the Conventionon the Rights of the Child are applicable only on the territories of the States parties thereto or whetherthey are also applicable outside those territories and, if so, in what circumstances.

108. The scope of application of the International Covenant on Civil and Political Rights isdefined by Article 2, paragraph 1, thereof, which provides:

“Each State Party to the present Covenant undertakes to respect and to ensureto all individuals within its territory and subject to its jurisdiction the rights recog-nized in the present Covenant, without distinction of any kind, such as race, colour,sex, language, religion, political or other opinion, national or social origin, property,birth or other status.”

This provision can be interpreted as covering only individuals who are both present within aState’s territory and subject to that State’s jurisdiction. It can also be construed as covering both indi-viduals present within a State’s territory and those outside that territory but subject to that State’sjurisdiction. The Court will thus seek to determine the meaning to be given to this text.


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109. The Court would observe that, while the jurisdiction of States is primarily territorial, itmay sometimes be exercised outside the national territory. Considering the object and purpose of theInternational Covenant on Civil and Political Rights, it would seem natural that, even when such isthe case, States parties to the Covenant should be bound to comply with its provisions.

The constant practice of the Human Rights Committee is consistent with this. Thus, theCommittee has found the Covenant applicable where the State exercises its jurisdiction on foreignterritory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayanagents in Brazil or Argentina (case No. 52/79, López Burgos v. Uruguay; case No. 56/79, LilianCeliberti de Casariego v. Uruguay). It decided to the same effect in the case of the confiscation ofa passport by a Uruguayan consulate in Germany (case No. 106/81, Montero v. Uruguay).

The travaux préparatoires of the Covenant confirm the Committee’s interpretation ofArticle 2 of that instrument. These show that, in adopting the wording chosen, the drafters of theCovenant did not intend to allow States to escape from their obligations when they exercise juris-diction outside their national territory. They only intended to prevent persons residing abroad fromasserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State,but of that of the State of residence (see the discussion of the preliminary draft in the Commissionon Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official Records of the GeneralAssembly, Tenth Session, Annexes, A/2929, Part II, Chap. V, para. 4 (1955)).

110. The Court takes note in this connection of the position taken by Israel, in relation to theapplicability of the Covenant, in its communications to the Human Rights Committee, and of theview of the Committee.

In 1998, Israel stated that, when preparing its report to the Committee, it had had to face thequestion “whether individuals resident in the occupied territories were indeed subject to Israel’sjurisdiction” for purposes of the application of the Covenant (CCPR/C/SR.1675, para. 21). Israeltook the position that “the Covenant and similar instruments did not apply directly to the current sit-uation in the occupied territories” (ibid., para. 27).

The Committee, in its concluding observations after examination of the report, expressedconcern at Israel’s attitude and pointed “to the long-standing presence of Israel in [the occupied]territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effectivejurisdiction by Israeli security forces therein” (CCPR/C/79/Add.93, para. 10). In 2003 in face ofIsrael’s consistent position, to the effect that “the Covenant does not apply beyond its own territory,notably in the West Bank and Gaza . . .”, the Committee reached the following conclusion:

“in the current circumstances, the provisions of the Covenant apply to the benefit ofthe population of the Occupied Territories, for all conduct by the State party’s author-ities or agents in those territories that affect the enjoyment of rights enshrined in theCovenant and fall within the ambit of State responsibility of Israel under the princi-ples of public international law” (CCPR/CO/78/ISR, para. 11).

111. In conclusion, the Court considers that the International Covenant on Civil and PoliticalRights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its ownterritory.


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112. The International Covenant on Economic, Social and Cultural Rights contains no provi-sion on its scope of application. This may be explicable by the fact that this Covenant guaranteesrights which are essentially territorial. However, it is not to be excluded that it applies both to terri-tories over which a State party has sovereignty and to those over which that State exercises territori-al jurisdiction. Thus Article 14 makes provision for transitional measures in the case of any Statewhich “at the time of becoming a Party, has not been able to secure in its metropolitan territory orother territories under its jurisdiction compulsory primary education, free of charge”.

It is not without relevance to recall in this regard the position taken by Israel in its reports tothe Committee on Economic, Social and Cultural Rights. In its initial report to the Committee of4 December 1998, Israel provided “statistics indicating the enjoyment of the rights enshrined in theCovenant by Israeli settlers in the occupied Territories”. The Committee noted that, according toIsrael, “the Palestinian population within the same jurisdictional areas were excluded from both thereport and the protection of the Covenant” (E/C.12/1/Add. 27, para. 8). The Committee expressed itsconcern in this regard, to which Israel replied in a further report of 19 October 2001 that it has “con-sistently maintained that the Covenant does not apply to areas that are not subject to its sovereign ter-ritory and jurisdiction” (a formula inspired by the language of the International Covenant on Civiland Political Rights). This position, continued Israel, is “based on the well-established distinctionbetween human rights and humanitarian law under international law”. It added: “the Committee’smandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part andparcel of the context of armed conflict as distinct from a relationship of human rights”(E/1990/6/Add. 32, para. 5). In view of these observations, the Committee reiterated its concernabout Israel’s position and reaffirmed “its view that the State party’s obligations under the Covenantapply to all territories and populations under its effective control” (E/C.12/1/Add.90, paras. 15 and31).

For the reasons explained in paragraph 106 above, the Court cannot accept Israel’s view. Itwould also observe that the territories occupied by Israel have for over 37 years been subject to itsterritorial jurisdiction as the occupying Power. In the exercise of the powers available to it on thisbasis, Israel is bound by the provisions of the International Covenant on Economic, Social andCultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise ofsuch rights in those fields where competence has been transferred to Palestinian authorities.

113. As regards the Convention on the Rights of the Child of 20 November 1989, thatinstrument contains an Article 2 according to which “States Parties shall respect and ensure the rightsset forth in the . . . Convention to each child within their jurisdiction . . .”. That Convention istherefore applicable within the Occupied Palestinian Territory.

•••

114. Having determined the rules and principles of international law relevant to reply to thequestion posed by the General Assembly, and having ruled in particular on the applicability withinthe Occupied Palestinian Territory of international humanitarian law and human rights law, the Courtwill now seek to ascertain whether the construction of the wall has violated those rules andprinciples.

•••


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115. In this regard, Annex II to the report of the Secretary-General, entitled “Summary LegalPosition of the Palestine Liberation Organization”, states that “The construction of the Barrier is anattempt to annex the territory contrary to international law” and that “The de facto annexation of landinterferes with the territorial sovereignty and consequently with the right of the Palestinians toself-determination.” This view was echoed in certain of the written statements submitted to the Courtand in the views expressed at the hearings. Inter alia, it was contended that: “The wall severs theterritorial sphere over which the Palestinian people are entitled to exercise their right of self-deter-mination and constitutes a violation of the legal principle prohibiting the acquisition of territory bythe use of force.” In this connection, it was in particular emphasized that “The route of the wall isdesigned to change the demographic composition of the Occupied Palestinian Territory, includingEast Jerusalem, by reinforcing the Israeli settlements” illegally established on the OccupiedPalestinian Territory. It was further contended that the wall aimed at “reducing and parcelling outthe territorial sphere over which the Palestinian people are entitled to exercise their right ofself-determination”.

116. For its part, Israel has argued that the wall’s sole purpose is to enable it effectively tocombat terrorist attacks launched from the West Bank. Furthermore, Israel has repeatedly stated thatthe Barrier is a temporary measure (see report of the Secretary-General, para. 29). It did so inter aliathrough its Permanent Representative to the United Nations at the Security Council meeting of14 October 2003, emphasizing that “[the fence] does not annex territories to the State of Israel”, andthat Israel is “ready and able, at tremendous cost, to adjust or dismantle a fence if so required as partof a political settlement” (S/PV.4841, p. 10). Israel’s Permanent Representative restated this viewbefore the General Assembly on 20 October and 8 December 2003. On this latter occasion, headded: “As soon as the terror ends, the fence will no longer be necessary. The fence is not a borderand has no political significance. It does not change the legal status of the territory in any way.”(A/ES-10/PV.23, p. 6.)

117. The Court would recall that both the General Assembly and the Security Council havereferred, with regard to Palestine, to the customary rule of “the inadmissibility of the acquisition ofterritory by war” (see paragraphs 74 and 87 above). Thus in resolution 242 (1967) of22 November 1967, the Security Council, after recalling this rule, affirmed that:

“the fulfilment of Charter principles requires the establishment of a just and lastingpeace in the Middle East which should include the application of both the followingprinciples:

(i) Withdrawal of Israel armed forces from territories occupied in the recentconflict;

(ii) Termination of all claims or states of belligerency and respect for andacknowledgement of the sovereignty, territorial integrity and politicalindependence of every State in the area and their right to live in peacewithin secure and recognized boundaries free from threats or acts offorce”.


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It is on this same basis that the Council has several times condemned the measures taken byIsrael to change the status of Jerusalem (see paragraph 75 above).

118. As regards the principle of the right of peoples to self-determination, the Court observesthat the existence of a “Palestinian people” is no longer in issue. Such existence has moreover beenrecognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat,President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli PrimeMinister. In that correspondence, the President of the PLO recognized “the right of the State of Israelto exist in peace and security” and made various other commitments. In reply, the Israeli PrimeMinister informed him that, in the light of those commitments, “the Government of Israel has decid-ed to recognize the PLO as the representative of the Palestinian people”. The Israeli-PalestinianInterim Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a numberof times to the Palestinian people and its “legitimate rights” (Preamble, paras. 4, 7, 8; Article II,para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The Court considers that those rightsinclude the right to self-determination, as the General Assembly has moreover recognized on a num-ber of occasions (see, for example, resolution 58/163 of 22 December 2003).

119. The Court notes that the route of the wall as fixed by the Israeli Government includeswithin the “Closed Area” (see paragraph 85 above) some 80 per cent of the settlers living in theOccupied Palestinian Territory. Moreover, it is apparent from an examination of the map mentionedin paragraph 80 above that the wall’s sinuous route has been traced in such a way as to include with-in that area the great majority of the Israeli settlements in the occupied Palestinian Territory (includ-ing East Jerusalem).

120. As regards these settlements, the Court notes that Article 49, paragraph 6, of the FourthGeneva Convention provides: “The Occupying Power shall not deport or transfer parts of its owncivilian population into the territory it occupies.” That provision prohibits not only deportations orforced transfers of population such as those carried out during the Second World War, but also anymeasures taken by an occupying Power in order to organize or encourage transfers of parts of its ownpopulation into the occupied territory.

In this respect, the information provided to the Court shows that, since 1977, Israel has con-ducted a policy and developed practices involving the establishment of settlements in the OccupiedPalestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited.

The Security Council has thus taken the view that such policy and practices “have no legalvalidity”. It has also called upon “Israel, as the occupying Power, to abide scrupulously” by theFourth Geneva Convention and:

“to rescind its previous measures and to desist from taking any action which wouldresult in changing the legal status and geographical nature and materially affectingthe demographic composition of the Arab territories occupied since 1967, includingJerusalem and, in particular, not to transfer parts of its own civilian population intothe occupied Arab territories” (resolution 446 (1979) of 22 March 1979).

The Council reaffirmed its position in resolutions 452 (1979) of 20 July 1979 and 465 (1980) of


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1 March 1980. Indeed, in the latter case it described “Israel’s policy and practices of settling partsof its population and new immigrants in [the occupied] territories” as a “flagrant violation” of theFourth Geneva Convention.

The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (includ-ing East Jerusalem) have been established in breach of international law.

121. Whilst the Court notes the assurance given by Israel that the construction of the walldoes not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above),it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall willprejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate thesettlements and their means of access. The Court considers that the construction of the wall and itsassociated régime create a “fait accompli” on the ground that could well become permanent, in whichcase, and notwithstanding the formal characterization of the wall by Israel, it would be tantamountto de facto annexation.

122. The Court recalls moreover that, according to the report of the Secretary-General, theplanned route would incorporate in the area between the Green Line and the wall more than 16 percent of the territory of the West Bank. Around 80 per cent of the settlers living in the OccupiedPalestinian Territory, that is 320,000 individuals, would reside in that area, as well as237,000 Palestinians. Moreover, as a result of the construction of the wall, around 160,000 otherPalestinians would reside in almost completely encircled communities (see paragraphs 84, 85 and119 above).

In other terms, the route chosen for the wall gives expression in loco to the illegal measurestaken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council (seeparagraphs 75 and 120 above). There is also a risk of further alterations to the demographic compo-sition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch asit is contributing, as will be further explained in paragraph 133 below, to the departure of Palestinianpopulations from certain areas. That construction, along with measures taken previously, thus severe-ly impedes the exercise by the Palestinian people of its right to self-determination, and is therefore abreach of Israel’s obligation to respect that right.

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123. The construction of the wall also raises a number of issues in relation to the relevantprovisions of international humanitarian law and of human rights instruments.

124. With regard to the Hague Regulations of 1907, the Court would recall that these deal, inSection II, with hostilities and in particular with “means of injuring the enemy, sieges, andbombardments”. Section III deals with military authority in occupied territories. Only Section III iscurrently applicable in the West Bank and Article 23 (g) of the Regulations, in Section II, is thus notpertinent.

Section III of the Hague Regulations includes Articles 43, 46 and 52, which are applicable inthe Occupied Palestinian Territory. Article 43 imposes a duty on the occupant to “take all measures


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within his power to restore, and, as far as possible, to insure public order and life, respecting the lawsin force in the country”. Article 46 adds that private property must be “respected” and that it cannot“be confiscated”. Lastly, Article 52 authorizes, within certain limits, requisitions in kind and servic-es for the needs of the army of occupation.

125. A distinction is also made in the Fourth Geneva Convention between provisions apply-ing during military operations leading to occupation and those that remain applicable throughout theentire period of occupation. It thus states in Article 6:

“The present Convention shall apply from the outset of any conflict or occu-pation mentioned in Article 2.

In the territory of Parties to the conflict, the application of the presentConvention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention shallcease one year after the general close of military operations; however, the OccupyingPower shall be bound, for the duration of the occupation, to the extent that suchPower exercises the functions of government in such territory, by the provisions ofthe following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51,52, 53, 59, 61 to 77, 143.

Protected persons whose release, repatriation or re-establishment may takeplace after such dates shall meanwhile continue to benefit by the presentConvention.”

Since the military operations leading to the occupation of the West Bank in 1967 ended a longtime ago, only those Articles of the Fourth Geneva Convention referred to in Article 6, paragraph 3,remain applicable in that occupied territory.

126. These provisions include Articles 47, 49, 52, 53 and 59 of the Fourth Geneva Convention.According to Article 47:

“Protected persons who are in occupied territory shall not be deprived, in anycase or in any manner whatsoever, of the benefits of the present Convention by anychange introduced, as the result of the occupation of a territory, into the institutionsor government of the said territory, nor by any agreement concluded between theauthorities of the occupied territories and the Occupying Power, nor by any annexa-tion by the latter of the whole or part of the occupied territory.”

Article 49 reads as follows:

“Individual or mass forcible transfers, as well as deportations of protected per-sons from occupied territory to the territory of the Occupying Power or to that of anyother country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuationof a given area if the security of the population or imperative military reasons so


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demand. Such evacuations may not involve the displacement of protected personsoutside the bounds of the occupied territory except when for material reasons it isimpossible to avoid such displacement. Persons thus evacuated shall be transferredback to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure,to the greatest practicable extent, that proper accommodation is provided to receivethe protected persons, that the removals are effected in satisfactory conditions ofhygiene, health, safety and nutrition, and that members of the same family are notseparated.

The Protecting Power shall be informed of any transfers and evacuations assoon as they have taken place.

The Occupying Power shall not detain protected persons in an area particular-ly exposed to the dangers of war unless the security of the population or imperativemilitary reasons so demand.

The Occupying Power shall not deport or transfer parts of its own civilian pop-ulation into the territory it occupies.”

According to Article 52:

“No contract, agreement or regulation shall impair the right of any worker,whether voluntary or not and wherever he may be, to apply to the representatives ofthe Protecting Power in order to request the said Power’s intervention.

All measures aiming at creating unemployment or at restricting the opportuni-ties offered to workers in an occupied territory, in order to induce them to work forthe Occupying Power, are prohibited.”

Article 53 provides that:

“Any destruction by the Occupying Power of real or personal property belong-ing individually or collectively to private persons, or to the State, or to other publicauthorities, or to social or cooperative organizations, is prohibited, except where suchdestruction is rendered absolutely necessary by military operations.”

Lastly, according to Article 59:

“If the whole or part of the population of an occupied territory is inadequatelysupplied, the Occupying Power shall agree to relief schemes on behalf of the saidpopulation, and shall facilitate them by all the means at its disposal.

Such schemes, which may be undertaken either by States or by impartialhumanitarian organizations such as the International Committee of the Red Cross,shall consist, in particular, of the provision of consignments of foodstuffs, medicalsupplies and clothing.

All Contracting Parties shall permit the free passage of these consignments andshall guarantee their protection.


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A Power granting free passage to consignments on their way to territory occu-pied by an adverse Party to the conflict shall, however, have the right to search theconsignments, to regulate their passage according to prescribed times and routes, andto be reasonably satisfied through the Protecting Power that these consignments areto be used for the relief of the needy population and are not to be used for the bene-fit of the Occupying Power.”

127. The International Covenant on Civil and Political Rights also contains several relevantprovisions. Before further examining these, the Court will observe that Article 4 of the Covenantallows for derogation to be made, under various conditions, to certain provisions of that instrument.Israel made use of its right of derogation under this Article by addressing the following communi-cation to the Secretary-General of the United Nations on 3 October 1991:

“Since its establishment, the State of Israel has been the victim of continuousthreats and attacks on its very existence as well as on the life and property of itscitizens.

These have taken the form of threats of war, of actual armed attacks, andcampaigns of terrorism resulting in the murder of and injury to human beings.

In view of the above, the State of Emergency which was proclaimed inMay 1948 has remained in force ever since. This situation constitutes a public emer-gency within the meaning of article 4 (1) of the Covenant.

The Government of Israel has therefore found it necessary, in accordance withthe said article 4, to take measures to the extent strictly required by the exigencies ofthe situation, for the defence of the State and for the protection of life and property,including the exercise of powers of arrest and detention.

In so far as any of these measures are inconsistent with article 9 of theCovenant, Israel thereby derogates from its obligations under that provision.”

The Court notes that the derogation so notified concerns only Article 9 of the InternationalCovenant on Civil and Political Rights, which deals with the right to liberty and security of personand lays down the rules applicable in cases of arrest or detention. The other Articles of the Covenanttherefore remain applicable not only on Israeli territory, but also on the Occupied PalestinianTerritory.

128. Among these mention must be made of Article 17, paragraph 1 of which reads as follows:“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home orcorrespondence, nor to unlawful attacks on his honour and reputation.”

Mention must also be made of Article 12, paragraph 1, which provides: “Everyone lawfullywithin the territory of a State shall, within that territory, have the right to liberty of movement andfreedom to choose his residence.”


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129. In addition to the general guarantees of freedom of movement under Article 12 of theInternational Covenant on Civil and Political Rights, account must also be taken of specific guaran-tees of access to the Christian, Jewish and Islamic Holy Places. The status of the Christian HolyPlaces in the Ottoman Empire dates far back in time, the latest provisions relating thereto havingbeen incorporated into Article 62 of the Treaty of Berlin of 13 July 1878. The Mandate for Palestinegiven to the British Government on 24 July 1922 included an Article 13, under which:

“All responsibility in connection with the Holy Places and religious buildingsor sites in Palestine, including that of preserving existing rights and of securing freeaccess to the Holy Places, religious buildings and sites and the free exercise ofworship, while ensuring the requirements of public order and decorum, is assumedby the Mandatory . . .”

Article 13 further stated: “nothing in this mandate shall be construed as conferring . . . authority tointerfere with the fabric or the management of purely Moslem sacred shrines, the immunities ofwhich are guaranteed”.

In the aftermath of the Second World War, the General Assembly, in adopting resolution 181 (II)on the future government of Palestine, devoted an entire chapter of the Plan of Partition to the HolyPlaces, religious buildings and sites. Article 2 of this Chapter provided, in so far as the Holy Placeswere concerned:

“the liberty of access, visit and transit shall be guaranteed, in conformity with exist-ing rights, to all residents and citizens [of the Arab State, of the Jewish State] and ofthe City of Jerusalem, as well as to aliens, without distinction as to nationality, subjectto requirements of national security, public order and decorum”.

Subsequently, in the aftermath of the armed conflict of 1948, the 1949 General Armistice Agreementbetween Jordan and Israel provided in Article VIII for the establishment of a special committee for“the formulation of agreed plans and arrangements for such matters as either Party may submit to it”for the purpose of enlarging the scope of the Agreement and of effecting improvement in its appli-cation. Such matters, on which an agreement of principle had already been concluded, included “freeaccess to the Holy Places”.

This commitment concerned mainly the Holy Places located to the east of the Green Line.However, some Holy Places were located west of that Line. This was the case of the Room of theLast Supper and the Tomb of David, on Mount Zion. In signing the General Armistice Agreement,Israel thus undertook, as did Jordan, to guarantee freedom of access to the Holy Places. The Courtconsiders that this undertaking by Israel has remained valid for the Holy Places which came underits control in 1967. This undertaking has further been confirmed by Article 9, paragraph 1, of the1994 Peace Treaty between Israel and Jordan, by virtue of which, in more general terms, “Each partywill provide freedom of access to places of religious and historical significance.”

130. As regards the International Covenant on Economic, Social and Cultural Rights, thatinstrument includes a number of relevant provisions, namely: the right to work (Articles 6 and 7);protection and assistance accorded to the family and to children and young persons (Article 10); theright to an adequate standard of living, including adequate food, clothing and housing, and the right


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“to be free from hunger” (Art. 11); the right to health (Art. 12); the right to education (Arts. 13 and14).

131. Lastly, the United Nations Convention on the Rights of the Child of 20 November 1989includes similar provisions in Articles 16, 24, 27 and 28.

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132. From the information submitted to the Court, particularly the report of the Secretary-General, it appears that the construction of the wall has led to the destruction or requisition ofproperties under conditions which contravene the requirements of Articles 46 and 52 of the HagueRegulations of 1907 and of Article 53 of the Fourth Geneva Convention.

133. That construction, the establishment of a closed area between the Green Line and the wallitself and the creation of enclaves have moreover imposed substantial restrictions on the freedom ofmovement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli cit-izens and those assimilated thereto). Such restrictions are most marked in urban areas, such as theQalqiliya enclave or the City of Jerusalem and its suburbs. They are aggravated by the fact that theaccess gates are few in number in certain sectors and opening hours appear to be restricted and unpre-dictably applied. For example, according to the Special Rapporteur of the Commission on HumanRights on the situation of human rights in the Palestinian territories occupied by Israel since 1967,“Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residentscan only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m.” (Report ofthe Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation ofhuman rights in the Palestinian territories occupied by Israel since 1967, submitted in accordancewith Commission resolution 1993/2 A and entitled “Question of the Violation of Human Rights inthe Occupied Arab Territories, including Palestine”, E/CN.4/2004/6, 8 September 2003, para. 9.)

There have also been serious repercussions for agricultural production, as is attested by a num-ber of sources. According to the Special Committee to Investigate Israeli Practices Affecting theHuman Rights of the Palestinian People and Other Arabs of the Occupied Territories

“an estimated 100,000 dunums [approximately 10,000 hectares] of the West Bank’smost fertile agricultural land, confiscated the Israeli Occupation Forces, have beendestroyed during the first phase of the wall construction, which involves the disap-pearance of vast amounts of property, notably private agricultural land and olivetrees, wells, citrus grows and hothouses upon which tens of thousands of Palestiniansrely for their survival” (Report of the Special Committee to Investigate IsraeliPractices Affecting the Human Rights of the Palestinian People and Other Arabs ofthe Occupied Territories, A/58/311, 22 August 2003, para. 26).

Further, the Special Rapporteur on the situation of human rights in the Palestinian territories occu-pied by Israel since 1967 states that “Much of the Palestinian land on the Israeli side of the Wall con-sists of fertile agricultural land and some of the most important water wells in the region” and addsthat “Many fruit and olive trees had been destroyed in the course of building the barrier.”(E/CN.4/2004/6, 8 September 2003, para. 9.) The Special Rapporteur on the Right to Food of theUnited Nations Commission on Human Rights states that construction of the wall “cuts off


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Palestinians from their agricultural lands, wells and means of subsistence” (Report by the SpecialRapporteur of the United Nations Commission on Human Rights, Jean Ziegler, “The Right to Food”,Addendum, Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2, 31 Octo-ber 2003, para. 49). In a recent survey conducted by the World Food Programme, it is stated that thesituation has aggravated food insecurity in the region, which reportedly numbers 25,000 newbeneficiaries of food aid (report of the Secretary-General, para. 25).

It has further led to increasing difficulties for the population concerned regarding access tohealth services, educational establishments and primary sources of water. This is also attested by anumber of different information sources. Thus the report of the Secretary-General states generallythat “According to the Palestinian Central Bureau of Statistics, so far the Barrier has separated30 localities from health services, 22 from schools, 8 from primary water sources and 3 from elec-tricity networks.” (Report of the Secretary-General, para. 23.) The Special Rapporteur of the UnitedNations Commission on Human Rights on the situation of human rights in the Palestinian territoriesoccupied by Israel since 1967 states that “Palestinians between the Wall and Green Line will effec-tively be cut off from their land and workplaces, schools, health clinics and other social services.”(E/CN.4/2004/6, 8 September 2003, para. 9.) In relation specifically to water resources, the SpecialRapporteur on the Right to Food of the United Nations Commission on Human Rights observes that“By constructing the fence Israel will also effectively annex most of the western aquifer system(which provides 51 per cent of the West Bank’s water resources).” (E/CN.4/2004/10/Add.2,31 October 2003, para. 51.) Similarly, in regard to access to health services, it has been stated that,as a result of the enclosure of Qalqiliya, a United Nations hospital in that town has recorded a40 per cent decrease in its caseload (report of the Secretary-General, para. 24).

At Qalqiliya, according to reports furnished to the United Nations, some 600 shops or busi-nesses have shut down, and 6,000 to 8,000 people have already left the region (E/CN.4/2004/6,8 September 2003, para. 10; E/CN.4/2004/10/Add.2, 31 October 2003, para. 51). The SpecialRapporteur on the Right to Food of the United Nations Commission on Human Rights has alsoobserved that “With the fence/wall cutting communities off from their land and water without othermeans of subsistence, many of the Palestinians living in these areas will be forced to leave.”(E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) In this respect also the construction of the wallwould effectively deprive a significant number of Palestinians of the “freedom to choose [their] res-idence”. In addition, however, in the view of the Court, since a significant number of Palestinianshave already been compelled by the construction of the wall and its associated régime to depart fromcertain areas, a process that will continue as more of the wall is built, that construction, coupled withthe establishment of the Israeli settlements mentioned in paragraph 120 above, is tending to alter thedemographic composition of the Occupied Palestinian Territory.

134. To sum up, the Court is of the opinion that the construction of the wall and its associat-ed régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory(with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12,paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exer-cise by the persons concerned of the right to work, to health, to education and to an adequate standardof living as proclaimed in the International Covenant on Economic, Social and Cultural Rights andin the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and


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its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the SecurityCouncil resolutions cited in paragraph 120 above.

135. The Court would observe, however, that the applicable international humanitarian lawcontains provisions enabling account to be taken of military exigencies in certain circumstances.

Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of the Fourth GenevaConvention contain any qualifying provision of this type. With regard to forcible transfers ofpopulation and deportations, which are prohibited under Article 49, paragraph 1, of the Convention,paragraph 2 of that Article provides for an exception in those cases in which “the security of thepopulation or imperative military reasons so demand”. This exception however does not apply toparagraph 6 of that Article, which prohibits the occupying Power from deporting or transferring partsof its own civilian population into the territories it occupies. As to Article 53 concerning thedestruction of personal property, it provides for an exception “where such destruction is renderedabsolutely necessary by military operations”.

The Court considers that the military exigencies contemplated by these texts may be invokedin occupied territories even after the general close of the military operations that led to their occupa-tion. However, on the material before it, the Court is not convinced that the destructions carried outcontrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutelynecessary by military operations.

136. The Court would further observe that some human rights conventions, and in particularthe International Covenant on Civil and Political Rights, contain provisions which States parties mayinvoke in order to derogate, under various conditions, from certain of their conventional obligations.In this respect, the Court would however recall that the communication notified by Israel to theSecretary-General of the United Nations under Article 4 of the International Covenant on Civil andPolitical Rights concerns only Article 9 of the Covenant, relating to the right to freedom and securi-ty of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisionsof that instrument.

The Court would note, moreover, that certain provisions of human rights conventions containclauses qualifying the rights covered by those provisions. There is no clause of this kind in Article 17of the International Covenant on Civil and Political Rights. On the other hand, Article 12, para-graph 3, of that instrument provides that restrictions on liberty of movement as guaranteed under thatArticle “shall not be subject to any restrictions except those which are provided by law, are neces-sary to protect national security, public order (ordre public), public health or morals or the rights andfreedoms of others, and are consistent with the other rights recognized in the present Covenant”. Asfor the International Covenant on Economic, Social and Cultural Rights, Article 4 thereof contains ageneral provision as follows:

“The States Parties to the present Covenant recognize that, in the enjoymentof those rights provided by the State in conformity with the present Covenant, theState may subject such rights only to such limitations as are determined by law only


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in so far as this may be compatible with the nature of these rights and solely for thepurpose of promoting the general welfare in a democratic society.”

The Court would observe that the restrictions provided for under Article 12, paragraph 3, ofthe International Covenant on Civil and Political Rights are, by the very terms of that provision,exceptions to the right of freedom of movement contained in paragraph 1. In addition, it is not suf-ficient that such restrictions be directed to the ends authorized; they must also be necessary for theattainment of those ends. As the Human Rights Committee put it, they “must conform to the prin-ciple of proportionality” and “must be the least intrusive instrument amongst those which mightachieve the desired result” (CCPR/C/21/Rev.1/Add.9, General Comment No. 27, para. 14). On thebasis of the information available to it, the Court finds that these conditions are not met in the pres-ent instance.

The Court would further observe that the restrictions on the enjoyment by the Palestinians liv-ing in the territory occupied by Israel of their economic, social and cultural rights, resulting fromIsrael’s construction of the wall, fail to meet a condition laid down by Article 4 of the InternationalCovenant on Economic, Social and Cultural Rights, that is to say that their implementation must be“solely for the purpose of promoting the general welfare in a democratic society”.

137. To sum up, the Court, from the material available to it, is not convinced that the specificcourse Israel has chosen for the wall was necessary to attain its security objectives. The wall, alongthe route chosen, and its associated régime gravely infringe a number of rights of Palestiniansresiding in the territory occupied by Israel, and the infringements resulting from that route cannot bejustified by military exigencies or by the requirements of national security or public order. The con-struction of such a wall accordingly constitutes breaches by Israel of various of its obligations underthe applicable international humanitarian law and human rights instruments.

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138. The Court has thus concluded that the construction of the wall constitutes action not inconformity with various international legal obligations incumbent upon Israel. However, Annex I tothe report of the Secretary-General states that, according to Israel: “the construction of the Barrieris consistent with Article 51 of the Charter of the United Nations, its inherent right to self-defenceand Security Council resolutions 1368 (2001) and 1373 (2001)”. More specifically, Israel’sPermanent Representative to the United Nations asserted in the General Assembly on20 October 2003 that “the fence is a measure wholly consistent with the right of States toself-defence enshrined in Article 51 of the Charter”; the Security Council resolutions referred to, hecontinued, “have clearly recognized the right of States to use force in self-defence against terroristattacks”, and therefore surely recognize the right to use non-forcible measures to that end(A/ES-10/PV.21, p. 6).

139. Under the terms of Article 51 of the Charter of the United Nations:

“Nothing in the present Charter shall impair the inherent right of individual orcollective self-defence if an armed attack occurs against a Member of the UnitedNations, until the Security Council has taken measures necessary to maintain inter-national peace and security.”


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Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence inthe case of armed attack by one State against another State. However, Israel does not claim that theattacks against it are imputable to a foreign State.

The Court also notes that Israel exercises control in the Occupied Palestinian Territory andthat, as Israel itself states, the threat which it regards as justifying the construction of the wall origi-nates within, and not outside, that territory. The situation is thus different from that contemplated bySecurity Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in anyevent invoke those resolutions in support of its claim to be exercising a right of self-defence.

Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

140. The Court has, however, considered whether Israel could rely on a state of necessitywhich would preclude the wrongfulness of the construction of the wall. In this regard the Court isbound to note that some of the conventions at issue in the present instance include qualifying claus-es of the rights guaranteed or provisions for derogation (see paragraphs135 and 136 above). Sincethose treaties already address considerations of this king witin their own provisions, it might be askedwhether a state of necessity as recognized in customary international law could be invoked withregard to those treaties as a ground for precluding the wrongfulness of the measures or decisionsbeing challenged. However, the Court will not need to consider that question. As the Courtobserved in the case concerning the Gab?íkovo-Nagymaros Project (Hungary/Slovakia), “the stateof necessity is a ground recognized by customary international law” that “can only be accepted onan exceptional basis”; it “can only be invoked under certain strictly defined conditions which mustbe cumulatively satisfied; and the State concerned is not the sole judge of whether those conditionshave been met” (I.C.J. Reports 1997, p. 40, para. 51). One of those conditions was stated by theCourt in terms used by the International Law Commission, in a text which in its present form requiresthat the act being challenged be “the only way for the State to safeguard an essential interest againsta grave and imminent peril” (Article 25 of the International Law Commission’s Articles onResponsibility of States for Internationally Wrongful Acts; see also former Article 33 of the DraftArticles on the International Responsibility of States, with slightly different wording in the Englishtext). In the light of the material before it, the Court is not convinced that the construction of the wallalong the route chosen was the only means to safeguard the interests of Israel against the peril whichit has invoked as justification for that construction.

141. The fact remains that Israel has to face numerous indiscriminate and deadly acts ofviolence against its civilian population. It has the right, and indeed the duty, to respond in order toprotect the life of its citizens. The measures taken are bound nonetheless to remain in conformitywith applicable international law.

142. In conclusion, the Court considers that Israel cannot rely on a right of self-defence or ona state of necessity in order to preclude the wrongfulness of the construction of the wall resultingfrom the considerations mentioned in paragraphs 122 and 137 above. The Court accordingly findsthat the construction of the wall, and its associated régime, are contrary to international law.

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143. The Court having concluded that, by the construction of the wall in the OccupiedPalestinian Territory, including in and around East Jerusalem, and by adopting its associated régime,Israel has violated various international obligations incumbent upon it (see paragraphs 114-137above), it must now, in order to reply to the question posed by the General Assembly, examine theconsequences of those violations.

•••

144. In their written and oral observations, many participants in the proceedings before theCourt contended that Israel’s action in illegally constructing this wall has legal consequences notonly for Israel itself, but also for other States and for the United Nations; in its Written Statement,Israel, for its part, presented no arguments regarding the possible legal consequences of theconstruction of the wall.

145. As regards the legal consequences for Israel, it was contended that Israel has, first, a legalobligation to bring the illegal situation to an end by ceasing forthwith the construction of the wall inthe Occupied Palestinian Territory, and to give appropriate assurances and guarantees of non-repetition.

It was argued that, secondly, Israel is under a legal obligation to make reparation for the dam-age arising from its unlawful conduct. It was submitted that such reparation should first of all takethe form of restitution, namely demolition of those portions of the wall constructed in the OccupiedPalestinian Territory and annulment of the legal acts associated with its construction and the restora-tion of property requisitioned or expropriated for that purpose; reparation should also include appro-priate compensation for individuals whose homes or agricultural holdings have been destroyed.

It was further contended that Israel is under a continuing duty to comply with all of the inter-national obligations violated by it as a result of the construction of the wall in the OccupiedPalestinian Territory and of the associated régime. It was also argued that, under the terms of theFourth Geneva Convention, Israel is under an obligation to search for and bring before its courts per-sons alleged to have committed, or to have ordered to be committed, grave breaches of internation-al humanitarian law flowing from the planning, construction and use of the wall.

146. As regards the legal consequences for States other than Israel, it was contended before theCourt that all States are under an obligation not to recognize the illegal situation arising from the con-struction of the wall, not to render aid or assistance in maintaining that situation and to co-operatewith a view to putting an end to the alleged violations and to ensuring that reparation will be madetherefor.

Certain participants in the proceedings further contended that the States parties to the FourthGeneva Convention are obliged to take measures to ensure compliance with the Convention and that,inasmuch as the construction and maintenance of the wall in the Occupied Palestinian Territory con-stitutes grave breaches of that Convention, the States parties to that Convention are under an obliga-tion to prosecute or extradite the authors of such breaches. It was further observed that “the UnitedNations Security Council should consider flagrant and systematic violation of international lawnorm[s] and principles by Israel, particularly . . . international humanitarian law, and take all neces-sary measures to put an end [to] these violations”, and that the Security Council and the GeneralAssembly must take due account of the advisory opinion to be given by the Court.

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147. Since the Court has concluded that the construction of the wall in the OccupiedPalestinian Territory, including in and around East Jerusalem, and its associated régime, are contraryto various of Israel’s international obligations, it follows that the responsibility of that State isengaged under international law.

148. The Court will now examine the legal consequences resulting from the violations of inter-national law by Israel by distinguishing between, on the one hand, those arising for Israel and, on theother, those arising for other States and, where appropriate, for the United Nations. The Court willbegin by examining the legal consequences of those violations for Israel.

•••

149. The Court notes that Israel is first obliged to comply with the international obligations ithas breached by the construction of the wall in the Occupied Palestinian Territory (see para-graphs 114-137 above). Consequently, Israel is bound to comply with its obligation to respect theright of the Palestinian people to self-determination and its obligations under international humani-tarian law and international human rights law. Furthermore, it must ensure freedom of access to theHoly Places that came under its control following the 1967 War (see paragraph 129 above).

150. The Court observes that Israel also has an obligation to put an end to the violation of itsinternational obligations flowing from the construction of the wall in the Occupied PalestinianTerritory. The obligation of a State responsible for an internationally wrongful act to put an end tothat act is well established in general international law, and the Court has on a number of occasionsconfirmed the existence of that obligation (Military and Paramilitary Activities in and againstNicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 149;United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 44,para. 95; Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82).

151. Israel accordingly has the obligation to cease forthwith the works of construction of thewall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem.Moreover, in view of the Court’s finding (see paragraph 143 above) that Israel’s violations of itsinternational obligations stem from the construction of the wall and from its associated régime,cessation of those violations entails the dismantling forthwith of those parts of that structure situatedwithin the Occupied Palestinian Territory, including in and around East Jerusalem. All legislativeand regulatory acts adopted with a view to its construction, and to the establishment of its associatedrégime, must forthwith be repealed or rendered ineffective, except in so far as such acts, by provid-ing for compensation or other forms of reparation for the Palestinian population, may continue to berelevant for compliance by Israel with the obligations referred to in paragraph 153 below.

152. Moreover, given that the construction of the wall in the Occupied Palestinian Territoryhas, inter alia, entailed the requisition and destruction of homes, businesses and agricultural hold-ings, the Court finds further that Israel has the obligation to make reparation for the damage causedto all the natural or legal persons concerned. The Court would recall that the essential forms ofreparation in customary law were laid down by the Perrmanent Court of International Justice in thefollowing terms:


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“The essential principle contained in the actual notion of an illegal act – aprinciple which seems to be established by international practice and in particular bythe decisions of arbitral tribunals – is that reparation must, as far as possible, wipeout all the consequences of the illegal act and reestablish the situation which would,in all probability, have existed if that act had not been committed. Restitution inkind, or, if this is not possible, payment of a sum corresponding to the value which arestitution in kind would bear; the award, if need be, of damages for loss sustainedwhich would not be covered by restitution in kind or payment in place of it – suchare the principles which should serve to determine the amount of compensation duefor an act contrary to international law.” (Factory at Chorzów, Merits, JudgmentNo. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)

153. Israel is accordingly under an obligation to return the land, orchards, olive groves andother immovable property seized from any natural or legal person for purposes of construction of thewall in the Occupied Palestinian Territory. In the event that such restitution should prove to bematerially impossible, Israel has an obligation to compensate the persons in question for the damagesuffered. The Court considers that Israel also has an obligation to compensate, in accordance withthe applicable rules of international law, all natural or legal persons having suffered any form ofmaterial damage as a result of the wall’s construction.

•••

154. The Court will now consider the legal consequences of the internationally wrongful actsflowing from Israel’s construction of the wall as regards other States.

155. The Court would observe that the obligations violated by Israel include certain obliga-tions erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are bytheir very nature “the concern of all States” and, “In view of the importance of the rights involved,all States can be held to have a legal interest in their protection.” (Barcelona Traction, Light andPower Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obli-gations erga omnes violated by Israel are the obligation to respect the right of the Palestinian peopleto self-determination, and certain of its obligations under international humanitarian law.

156. As regards the first of these, the Court has already observed (paragraph 88 above) that inthe East Timor case, it described as “irreproachable” the assertion that “the right of peoples toself-determination, as it evolved from the Charter and from United Nations practice, has an ergaomnes character” (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under theterms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88),

“Every State has the duty to promote, through joint and separate action, real-ization of the principle of equal rights and self-determination of peoples, inaccordance with the provisions of the Charter, and to render assistance to the UnitedNations in carrying out the responsibilities entrusted to it by the Charter regarding theimplementation of the principle . . .”


242


157. With regard to international humanitarian law, the Court recalls that in its AdvisoryOpinion on the Legality of the Threat or Use of Nuclear Weapons, it stated that “a great many rulesof humanitarian law applicable in armed conflict are so fundamental to the respect of the human per-son and ‘elementary considerations of humanity’ . . .”, that they are “to be observed by all Stateswhether or not they have ratified the conventions that contain them, because they constitute intrans-gressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257, para. 79). In theCourt’s view, these rules incorporate obligations which are essentially of an erga omnes character.

158. The Court would also emphasize that Article 1 of the Fourth Geneva Convention, aprovision common to the four Geneva Conventions, provides that “The High Contracting Partiesundertake to respect and to ensure respect for the present Convention in all circumstances.” It followsfrom that provision that every State party to that Convention, whether or not it is a party to a specificconflict, is under an obligation to ensure that the requirements of the instruments in question arecomplied with.

159. Given the character and the importance of the rights and obligations involved, the Courtis of the view that all States are under an obligation not to recognize the illegal situation resultingfrom the construction of the wall in the Occupied Palestinian Territory, including in and around EastJerusalem. They are also under an obligation not to render aid or assistance in maintaining the situ-ation created by such construction. It is also for all States, while respecting the United NationsCharter and international law, to see to it that any impediment, resulting from the construction of thewall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.In addition, all the States parties to the Geneva Convention relative to the Protection of CivilianPersons in Time of War of 12 August 1949 are under an obligation, while respecting the UnitedNations Charter and international law, to ensure compliance by Israel with international humanitari-an law as embodied in that Convention.

160. Finally, the Court is of the view that the United Nations, and especially the GeneralAssembly and the Security Council, should consider what further action is required to bring to anend the illegal situation resulting from the construction of the wall and the associated régime, takingdue account of the present Advisory Opinion.

••• 161. The Court, being concerned to lend its support to the purposes and principles laid down

in the United Nations Charter, in particular the maintenance of international peace and security andthe peaceful settlement of disputes, would emphasize the urgent necessity for the United Nations asa whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose athreat to international peace and security, to a speedy conclusion, thereby establishing a just and last-ing peace in the region.

162. The Court has reached the conclusion that the construction of the wall by Israel in theOccupied Palestinian Territory is contrary to international law and has stated the legal consequencesthat are to be drawn from that illegality. The Court considers itself bound to add that this construc-tion must be placed in a more general context. Since 1947, the year when General Assemblyresolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a


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succession of armed conflicts, acts of indiscriminate violence and repressive measures on the formermandated territory. The Court would emphasize that both Israel and Palestine are under an obligationscrupulously to observe the rules of international humanitarian law, one of the paramount purposesof which is to protect civilian life. Illegal actions and unilateral decisions have been taken on allsides, whereas, in the Court’s view, this tragic situation can be brought to an end only throughimplementation in good faith of all relevant Security Council resolutions, in particular resolu-tions 242 (1967) and 338 (1973). The “Roadmap” approved by Security Council resolution1515 (2003) represents the most recent of efforts to initiate negotiations to this end. The Courtconsiders that it has a duty to draw the attention of the General Assembly, to which the presentOpinion is addressed, to the need for these efforts to be encouraged with a view to achieving as soonas possible, on the basis of international law, a negotiated solution to the outstanding problems andthe establishment of a Palestinian State, existing side by side with Israel and its other neighbours,with peace and security for all in the region.

•••

163. For these reasons,

THE COURT,

(1) Unanimously,Finds that it has jurisdiction to give the advisory opinion requested;

(2) By fourteen votes to one,Decides to comply with the request for an advisory opinion;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Veresh-chetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada,Simma, Tomka;

AGAINST: Judge Buergenthal;

(3) Replies in the following manner to the question put by the General Assembly:

A. By fourteen votes to one,

The construction of the wall being built by Israel, the occupying Power, in the OccupiedPalestinian Territory, including in and around East Jerusalem, and its associated régime, are contraryto international law;



B. By fourteen votes to one,

Israel is under an obligation to terminate its breaches of international law; it is under an


244


obligation to cease forthwith the works of construction of the wall being built in the OccupiedPalestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structuretherein situated, and to repeal or render ineffective forthwith all legislative and regulatory actsrelating thereto, in accordance with paragraph 151 of this Opinion;



C. By fourteen votes to one,

Israel is under an obligation to make reparation for all damage caused by the construction ofthe wall in the Occupied Palestinian Territory, including in and around East Jerusalem;



D. By thirteen votes to two,

All States are under an obligation not to recognize the illegal situation resulting from the con-struction of the wall and not to render aid or assistance in maintaining the situation created by suchconstruction; all States parties to the Fourth Geneva Convention relative to the Protection of CivilianPersons in Time of War of 12 August 1949 have in addition the obligation, while respecting theUnited Nations Charter and international law, to ensure compliance by Israel with internationalhumanitarian law as embodied in that Convention;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Veresh-chetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Elaraby, Owada, Simma,Tomka;

AGAINST: Judges Kooijmans, Buergenthal;

E. By fourteen votes to one,

The United Nations, and especially the General Assembly and the Security Council, shouldconsider what further action is required to bring to an end the illegal situation resulting from the con-struction of the wall and the associated régime, taking due account of the present Advisory Opinion.


AGAINST: Judge Buergenthal.


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Done in French and in English, the French text being authoritative, at the Peace Palace,The Hague, this ninth day of July, two thousand and four, in two copies, one of which will be placedin the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) SHI Jiuyong,President.

(Signed) Philippe COUVREUR,Registrar.

Judges KOROMA, HIGGINS, KOOIJMA and AL-KHASAWNEH append separate opinions to theAdvisory Opinion of the Court; Judge BU E R G Eappends a declaration to the Advisory Opinion ofthe Court; Judges ELARA and OWADAAPPEND separate opinions to the Advisory Opinion of the Court.

(Initialled) J.Y.S.

(Initialled) Ph.C.

___________


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A more secured world: Our shared responsibility72, 92

abdul-Hadi, Auni Bey 34Abdullah, Prince Seif El Islam 57Afghanistan 96aggression, definition of 93, 94, 176-179Ain Maghara 27Albania 96Algeria 16Allied Powers 28, 38 (see also Principal Allied

Powers)Almagor (see Organization of Casualties of Terror

Acts) America 143, 152American 65American Society of International Law 14Amery, L.S. 137Amman 58fnAnglo-American Committee of Enquiry (1946)

130, 131Anglo-French Convention 27Anglo-Palesine Bank (Bank Leumi) 33Anglo-Transjordanian Treaty (1928) 115Annan, Kofi 48, 149anti-israel 13, 15, 101, 103Aqaba 27Arab Agency 61Arab behavior (aggression) 56, 74, 95, 97, 99,

129, 131, 150Arab Delegation (1922) 39Arab hatred of Jews 133Arab Higher Committee 61, 62, 133Arab-Israeli War (1948) see Israel, War of

IndependenceArab League 13, 15, 17, 19, 20, 35, 53, 63, 64,

66, 145Arab Legion 58fnArab nationalism 132, 133Arab press 19, 132Arab rejection of Resolution 181 8, 19, 35, 42,

52, 56, 57, 59, 61, 62, 64, 68, 145Arab Revolt (1936-1939) 131-132Arab self-determination 33Arab states (countries) 10, 11, 42, 43, 52, 54,

55, 60, 67, 93, 100, 145Arab territories see Occupied Palestinian

Territories Arab(s) 8, 26, 27, 30, 31, 32, 33, 34, 35, 39,

40, 45, 49, 52-57, 59, 60, 61, 62-66, 74, 75,107, 110, 114, 118, 119, 130, 131, 132, 133,138, 139, 144

Arab-Israeli conflict 9, 41, 94, 129

Arabs, as aggressors 74, 94, 99, 100Arafat, Yasser 22, 88, 147Arangio-Ruiz, Gaetano 104Argentina 96Arks 47Armistice Agreement (Jordan-Israel, 1949) 43Armistice Demarcation Lines 98Arslan, Adil 57Atlee, Clement 138attempted usurpation of Security Council power

by ICJ 148, 151Babylon 46Babylonian Exile 47Babylonians 46, 47Bahrain 16Balfour Declaration 11, 29, 35, 36, 55, 136Bangladesh 16Banias 27Barak, Judge Aaron 124Barbados 96Beersheba 23Beer-Tuvia 131Beijing 152fnBeirut Declaration (2002) 21Beit Sourik Village Council v. The Government

of Israel 123-124Bekker, Pieter H. F. 14, 15fnBelgium 31fnBengal 133Bergson, Peter 114Bible 46Bolivia 62, 96Brazil 96Breyer, Justice Stephen G. 122British 11, 28, 32, 61, 89, 115, 119, 136British Government 37, 39, 40, 130, 132, 137,

138British Mandate (Mandator) 37, 52, 54, 58fn,

60, 64, 113, 114, 116, 120, 129-130, 132,150

British National Archive 27Brunei Darussalam 16Burundi 96Cairo 119Cambodia 96Cambodia’s killing fields 71Camp David Accord (see also Israeli-Palestinian

Interim Agreement) 135Canaan 28fnCemetery on the Mount of Olives 43, 115Ceylon 96Charter of the Nuremberg Tribunal (1945) 86

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Index


Chief Rabbinate 137Chile 96China 152fnChristian holy places 37, 42, 43, 44Churchill, Winston 39,136Class “A” Mandate 30, 31, 32, 38Class “A” Status 31Class “B” Mandate 31fnClass “C” Mandate 31fnclean hands test 66, 67, 145Colombia 96Columbia University School of Law 149Comoros 16Conference of Islamic States 145Congo (Brazzaville) 96Convention on the Rights of the Child 81Costa Rica 96Council of Lebanon 35Council of the Arab League Summit 21Council of the League of Nations 28, 29, 116,

117, 130Covenant of the League of Nations 28, 29, 30Covenant of the League of Nations, Article 22

28, 29, 30, 31, 113, 180-181crimes against humanity 9, 78, 84, 86Crusades 20Cuba 16Curzon, Lord 139Cyprus 96Czechoslovakia 62Damascus 40de Castro, Judge 110Dead Sea 27, 117Declaration of Principles of International Law

93Declaration on the Invasion of Palestine 19Denmark 62Directives 107Djibouti 16Dominican Republic 96Draft Code Against the Peace and Security of

Mankind 86East Jerusalem 7, 11, 41, 43, 45, 46, 48, 49,

59, 101, 102-103, 109, 112, 114Ecuador 96Egypt 16, 19, 20, 44, 63, 94, 95, 99, 100, 111,

119Egypt, expulsion of UN peacekeepers by 119Egyptian 114, 120, 151Eilat 95El Hamme 27El Salvador 96Elaraby, Nabil 1451Elath, Eliahu 114

Erased in a Moment: Suicide Bombing AttacksAgainst Israel Civilians 84, 90

Eretz Yisrael (the Land of Israel) 47ethnic cleansing of Jews 114Etzion Bloc 114Falun Gong 152fnFateh 16, 17, 145Fateh Constitution 17, 19, 186-187fence see Israeli security barrierFirst Congress of Muslim-Christian Associations

(1919) 28fnFirst Monthly Progress Report of the UN-

appointed Palestine Commission 62First Temple 46, 47First World War 26, 55Fitzmaurice, Sir Gerald 104, 149Fletcher, George P. 149Foot, Sir Hugh, Lord Caradon 98, 149Fourth Geneva Convention (1949) 70, 101,

110, 111, 112, 115, 125, 126-127, 142, 148Fourth Geneva Convention, Article 158 127France 31fn, 40Frangie, Hamid 35Freedom House 15, 16fnFrench 40French Mandated Territories 27Gaza (Strip) 23, 25, 36fn, 77, 88, 90, 101, 110,

111, 112, 113, 114, 117, 118, 119, 120, 124,126, 127, 139

Gaza Aqaba Road 27Gaza-Jericho Agreement (1994) 22fn, 119General Assembly see UN General Assembly Geneva Convention 71, 85, 92, 122-123, 125,

126, 142Geneva Convention, Article 49 111George, David Lloyd 55, 138Gilbert, Martin 46Golan Heights 100Goldberg, Arthur J. 98, 149Government Legal Advising in the Field of

Foreign Affairs 122Government of His Britannic Majesty 30Government of Palestine 53, 54Great Britain (Britain) 11, 25, 26, 30, 31fn, 33,

40, 54, 62, 116, 138Greater Syria (Suriyya al-Kubra) 26Green Line 66, 89, 106, 109, 120Guatemala 96Guinea 96Gulf of Aqaba 27Guyana 96Hague Convention (1907) 85, 122-123, 125,

126, 142Hague Regulations 125


248


international humanitarian law (IHL) 70international law 25, 38, 45fn, 73, 77, 88, 92,

93, 98, 99, 101, 102, 103, 104, 109, 110,112, 113, 114, 117, 121, 122, 125, 139, 141,146, 147, 148, 149, 150, 151, 152

International Law Commission 86Intifada 21Iran 77, 92, 94Iraq 29, 31fn, 32, 44, 57, 63, 108, 129, 138Iraqi forces 64Ireland 133Islamic holy places 37, 42, 44Islamic terrorists (see also terrorists) 144Israel (State of Israel) 7, 9, 11, 13, 14, 15, 16,

19, 34, 35, 36fn, 42, 43, 44, 45, 49, 56, 65,66, 68, 69, 71, 74, 75, 78, 83, 89, 88, 89,90, 91, 93, 93, 96, 97, 98, 99, 100, 102,106, 107, 108, 109, 111, 112, 117, 118, 119,120, 121, 122, 127, 135, 142, 143, 148, 150,152fn

Israel and Palestine: Assault on the Law of Nations10fn

Israel as aggressor 43-44, 76, 93-96, 97, 106,108

Israel bashing at the UN 9, 71Israel Defence Forces (IDF) 123, 124Israel(i) self-defence 11, 150Israeli acceptance of Resolution 181 63Israeli Government 7, 11, 111, 125Israeli Government Decision 64/B (2002)

(building of security barrier) 80Israeli occupation 21, 120Israeli rights 142Israeli security barrier (wall/fence) 7, 9, 10, 11,

15 17, 27, 34, 36, 51, 65, 67, 69, 78, 79, 80,81, 83, 91, 109, 119, 123, 124, 126, 130,131, 143, 144, 150, 151

Israeli security barrier (wall/fence), legality of 7,101, 124, 129, 143, 148

Israeli settlers 119, 126Israeli Supreme Court 121-127, 146Israeli victims of terrorism 13Israeli War of Independence (1948) 19, 20, 45,

58, 60, 62, 74, 94, 99, 114, 150Israeli(s) 77, 88, 90, 106, 119, 131, 145, 147Israeli-Palestinian Interim Agreement on the

West Bank and Gaza Strip (1995) 70, 135,138

Israelites 46Jamaica 96Jamali, Fadhel 57, 63-64Jenin 77, 90Jericho 90Jerusalem (Zion) 41-48, 56, 59, 99, 105, 115Jerusalem, “City of the Jews” 48

I N D E X

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Haifa 23Hansell, Herbert 67Hebrew 137Hebrew press 137Hebron 48, 114, 131Herzog, Haim 11Hezbollah 95Higgins, Rosalyn 8, 11, 89High Commisioner for Palestine 120, 137Higher Arab Committee 18Holy Land 32, 43, 48Honduras 96Human Rights Watch (HRW) 84, 86, 90-91illegal combatants (see also terrorists) 143illegal occupation 149India 96, 143-144Indonesia 16, 96Interim Agreement on the West Bank and Gaza

Strip (1995) 90-91International Committee of the Red Cross

(ICRC) 70International Court of Justice (ICJ) 7-8, 10fn,

11, 13, 14, 17, 21, 22, 27, 28, 30, 33-39, 41,44, 51-57, 59-61, 65-67, 69-73, 76-81, 84,85, 87-92, 93, 99, 101-105, 108-121, 124-126, 129-130, 132, 135, 136, 138, 141-152

ICJ Advisory Opinion 7, 9, 11, 15, 25, 36, 38-39, 41, 44, 53, 54, 66, 67, 69, 74, 77, 78,80, 81, 83-84, 87, 89, 92, 101-102, 109,113, 115, 117, 118, 119, 122, 125, 126, 142,148, 150, 189

ICJ Bench 8, 9, 10, 11, 28, 33, 34, 38, 55, 69,73, 74, 87, 103, 117-118, 120, 121-123,126, 129, 135, 141, 142, 144, 146, 148, 149,151, 152

ICJ, bias of 16, 17, 72ICJ Charter 14, 16, 16ICJ Charter, Article 66 14, 16, 17, 145ICJ legal review 51ICJ Order 14ICJ, refusal to permit testimony of Israeli victims

of terrorism 13, 14ICJ Resolution 2 14ICJ Statute 67, 121, 141, 149, 150ICJ, confusion of 113ICJ, Statute Article 38 141-142, 145, 146ICJ, unauthorized illegal transfer of territory by

109ICJ’s historical narrative 26, 58, 62International Convention for the Suppression of

Terrorist Bombings 77, 80, 81International Covenant on Civil and Political

Rights 37, 81International Covenant on Economic, Social and

Cultural Rights 81


Jerusalem, City of Peace 44Jerusalem, Holy Places 36, 37, 41-42, 43, 44,

115Jerusalem, internationalization of 42, 43, 44, 54Jerusalem, Jewish inhabitants of 43, 45Jerusalem, Jewish Quarter 45, 114Jerusalem, Jewish significance of 46-48Jerusalem, Muslim significance of 48Jerusalem, Old City 112, 114, 115Jerusalem, Walled City 43Jerusalem, Western Wall 45, 114Jerusalemites 59, 101Jew(s) 8, 32, 33, 34, 35, 36, 37, 43, 46, 47, 49,

52, 53, 55, 59, 63, 64, 112, 113, 114, 115,116, 131, 132, 133, 137, 139, 144

Jewish 8, 30, 32, 33, 34, 40, 45, 48, 49, 54, 57,60, 61, 63, 101, 110, 114, 130, 131, 132,136, 137, 138

Jewish (Israeli) settlements 112, 113, 115, 118Jewish (Israeli) settlements, legality of 101, 102-

103, 112, 116, 117, 148, 150Jewish Agency 31, 34, 62, 113, 116, 131Jewish deaths in War of Independence 65Jewish holy places 37, 42, 44Jewish immigration 32, 61, 116, 131Jewish kingdom 46, 47Jewish Mandated Palestine 100, 115Jewish National Home (Jewish State) 8, 10, 18,

24, 25, 29, 31, 32, 55, 117, 131, 136, 137,138

Jewish nature of Mandate for Palestine 30, 37Jewish Palestinian citizenship 33Jewish Revolt 28fnJewish right(s) 9, 25Jewish self-determination 28, 33, 113, 135,

136, 139Jewish State 36, 55, 61, 63, 66, 100Jisr Banat Ya’pub 27Jiuyong, Shi 8, 152Johns Hopkins School of Advanced International

Studies 45fnJordan (Hashemite Kingdom of Trans-Jordan)

16, 19, 27, 43, 54, 58fn, 64, 94, 96, 99, 100,111, 112, 114, 116, 138

Jordan River 25, 27, 28fn, 32, 43, 54, 58fn, 64,112, 113, 115, 117, 118, 119 ,138, 150

Jordanian 43 ,49, 114, 115Judaism 114Judea 28fnJust and lasting peace 106Kashmir 143-144Kfar Darom 114Khalil, Gregory 151King Abdullah 58fn

King David 46King Hussein 43King Solomon 46Kuwait 16, 108Lake Hula 27Lake of Tiberias 27Lauterpacht, Sir Elihu 41, 42, 44, 56, 75, 108,

112, 149Lauterpacht, Sir Hersch 104, 149law of nations 91, 99lawful force 152lawful occupation 106League of Arab States 17, 18, 19, 20League of Nations 26, 28, 30, 33, 54, 116, 117,

118, 129-130, 132, 137, 138, 153League of Nations Charter, Article 22 118, 129Lebanon 16, 19, 21, 27, 31, 44, 63, 77, 95,

113, 130, 138Legal Consequences on the Construction of a Wall

in the Occupied Palestinian Territory 11London 39Malaysia 16, 21, 96Mali 96Mandate for Iraq 31, 33Mandate for Jewish self-determination 28, 117Mandate for Lebanon 31, 33Mandate for Palestine (1922) 10, 11, 24, 25,

26, 29-39, 42, 51, 52, 54, 60, 61, 63, 112-113, 114, 116-117, 118, 120, 129-130, 136,137, 138, 153-161

Mandate for Palestine, Article 25 160-161Mandate for Syria 31, 33Mandate Report (1930) 131Mandates of the League of Nations 39Mandator see British MandateMandatory for Trans-Jordan 117Mauritania 16Maxsim Restaurant 23McMahon letter (1915) 39-40McMahon, Sir Henry 39Mecca 48Mediterranean Sea 5, 27, 28fn, 113, 117, 118,

150Metulla 27Mexico 96Middle East 36, 106Mongolian massacres 20Morocco 16, 143-144Munich Olympics 15Muslim (Moslem) 21, 22, 26, 37, 44, 48, 55Namibia 16, 31fn, 72, 117, 118, 143Nazi 131Neki-Aqaba Road 27Netanyahu, Ben-Zion 114


250


Nicaragua 96nonbinding legality of UN General Assembly

resolutions 142non-governmental organization (NGO) 90non-State entities 69-70, 87, 92occupation 132Occupied (Palestinian) Territories 7, 11, 28, 39,

41, 51, 59, 66, 81, 87, 88, 97, 98, 99, 101,102, 103, 105, 106, 111, 112, 119, 126

occupied territories (see Occupied PalestinianTerritories) 105

occupied territory 107, 110, 111Old Testament 48Oman 16Oppenheim’s International Law 56Organization of Casualties of Terror Acts 14,

145Organization of Islamic States 16Organization of the Islamic Conference (OIC)

13, 17, 21Oslo Accords 36fn, 70, 71, 76, 82fn, 87-88,

90, 119Oslo Accords II 90Ottoman Empire 26, 30, 31, 37Ottoman Turks 48-49pacta sunt servanda 56Pakistan 16fn, 96, 144Palestina 28fnPalestine 8, 14, 16, 17, 18, 19, 20, 25, 26, 27,

28, 28fn, 29, 30, 32, 33, 34, 36, 37, 38, 39,40, 44, 45, 53, 54, 55, 58fn, 60, 61, 63, 64,67, 69, 89, 99, 105, 113, 115, 116, 120, 129,131, 132, 136, 137, 138

Palestine as historic homeland of the Jews 32Palestine as a “special regime” 32Palestine Liberation Organization (PLO) 11,

13, 16, 17, 66, 87-88, 90, 119, 145, 151PLO as representative of Palestinian people 87-

88 PLO Charter 66, 182-185PLO Charter, Article 20 36 PLO Charter, Article 21 36PLO UN observer status 14, 15Palestine National Council 36Palestine Philharmonic Orchestra (Israeli

Philharmonic) 34Palestine, eastern (Jordan) 117Palestine, origin of the name 28fnPalestine, partition resolution see UN Partition

Resolution 181Palestine, western 113, 114, 115, 116, 118, 119Palestinian (Arab) state 35, 60, 61Palestinian Arabs 10, 28fn, 31, 32, 33, 52, 54,

58fn, 62, 66, 94, 114, 117, 129, 132, 133Palestinian aggression 94

Palestinian as a Jewish term 40Palestinian Authority (PA) 10, 22, 66, 70, 76,

77, 84, 90, 94Palestinian Authority aggression 76Palestinian autonomy 87, 89Palestinian Charter (1964) 15, 66Palestinian commitments 90, 91Palestinian entitlement 105Palestinian Interim Self-Government Authority

70Palestinian Jews (Israelis) 28fn, 34, 63Palestinian National Council 36fnPalestinian National Covenant 87Palestinian “people” as a fabrication 27Palestinian resistance 21Palestinian rights 91, 115, 135, 142Palestinian Royal Commision Report (1937)

29, 31, 120Palestinian self-determination 10-11, 26, 31fn,

34, 52, 66, 84, 90, 117, 135, 136, 139, 150Palestinian self-rule 22Palestinian state 91, 129Palestinian statehood 130Palestinian terrorism 7, 11, 78, 80, 82, 83,

84fn, 90, 93, 124, 126, 150Palestinian terrorist organizations 77Palestinian terrorists 71 ,84Palestinian UN delegation 36, 104Palestinian warfare 70Palestinian(s) 9, 10, 17, 21, 23, 26, 30, 33, 34,

35, 36, 40, 41, 56, 66, 67, 70, 83, 90, 91,92, 118, 124, 124, 126, 130, 132, 135, 137,145, 150

Panama 62, 96Paraguay 96Paris Peace Conference 28fnPasha, Azam 19Passover 47, 83Peel Commission 34Persia (Iran) 46Philippines 62Philistia 28fnPhilistines 28fnPolisario guerrillas 143POWs 143Preamble of the Mandate for Palestine 37Principal Allied Powers 26, 30, 37, 38, 120,

136, 137, 154Progress Report of the Mediator 60Pro-Palestinian decisions 104pro-Palestinian experts 58pro-Palestinian media 30Provisional Government of Israel 53Punjab 144Qadas 27

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Qatar 16Rabbinical Council 137Rabin, Yitzhak 88Rafa(h) 27, 123Rafiah 124Rajasthan 144Ramallah 22, 90Ras en Naqura 27Ras Jaba 27Report of His Majesty’s Government in the United

Kingdom of Great Britain and Northern Irelandto the Council of the League of Nations on theAdministration of Palestine and the PalestineRoyal Commission 1936-1937 132, 133

Report of the High Commissioner on theAdministration of Palestine 1920-1925 to theSecretary of State for the Colonies (1925) 137

Report of the Secretary-General 79, 84, 150Republic of Korea 16fnResolutions and International Conventions 77-

78Riebenfeld, Dr. Paul 114Rome 28fnRome Statute of the International Criminal

Court (2002) 85-87, 92Rostow, Eugene V. 98, 112, 113, 114, 119,

139, 149Ruanda-Urundi 31fnRwandan murders 71sacred trust 30, 39, 118, 119Safed 48, 131Saharawi tribes 143Samakh-Deraa railway 27San Francisco Conference (1945) 114San Remo Conference (1920) 25, 29, 38, 136,

137Sanjak of Jersualem 40Saudi Arabia 16, 44, 63, 92Schreuer, Christof H. 10fnSchwebel, Stephen 45, 72, 74, 99, 103-104,

108, 122, 146, 149Seam Area 124Second Temple (Holy Temple) 46, 47Second World War 111Secretary of State for the Colonies 39, 137Secretary-General of the Arab League 19, 63Security Council see UN Security Councilsecurity fences 129, 131-132Selden, Harry 114self defence (self-defense) 69-78, 89, 92, 93, 94,

99, 106, 152Senegal 96September 11, 2001 82, 85, 89Shamgar, Meir 127Shavuot 47

I N D E X

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Sherif of Mecca 39-40Shikaki, Dr. Khalil 22Sikh separatists 144Sinai 27Sinai Campaign (1956) 95, 150Sinai Peninsular territory 100, 119Six-Day War (1967) 41, 43, 60, 74, 94, 99,

100, 107, 115, 119, 120, 127, 150Somalia 16, 96South Africa 16, 31fnSouth West Africa see NamibiaSoviet bloc 147Stone, Julius 10fn, 42, 56, 58 ,67, 99, 104,

109, 111-112, 144, 146-147, 149Strait of Tiran 95Struggles for self-determination 81Studies 58Sudan 16suicide attacks 21suicide bombers (shahids) 9, 21, 22, 41, 65, 77,

81, 89, 90, 144Sukkot 47Syria 16fn, 27, 28fn, 29, 31, 32, 40, 44, 57,

63, 77, 92, 95, 96, 100, 129, 138Syrian Arab Republic 96Syrian Golan 105Syrians 33“T” word see terrorism

Temple Mount 48, 114tempus regit factum 110Territories (see Occupied Palestinian Territories)terror attacks 11, 82, 83 ,85 ,89terrorism 13, 16, 21, 22, 69, 78, 79-92, 122,

130, 132, 133, 142-142, 150terrorism, definition of (see UN Resolution

52/164) 80-81terrorist, who is a? (see also UN Resolution

52/164) 80-81terrorist organizations 13, 77terrorists, prosecution of (see UN Resolution

52/164) 80territory of Palestine 26The Future of Arab Palestine and the Question of

Partition 59The Future of Palestine 98, 113, 139The Legal Effect of Resolutions and Codes of

Conduct of the United Nations 72The New York Times 19, 71, 124, 149, 151The Normative Role of the General Assembly of the

United Nations and the Declaration ofPrinciples of Friendly Relations 104

The Palestine Post (The Jerusalem Post) 34The Washington Post 21, 144fnThird World 147Thors, Thor 61


Tiberias 48Tibet 152fnTisha B’Av 47Trans-Jordan (Transjordan) 27, 28, 29, 44,

54, 55, 63, 64, 116-117, 138, 160-161Treaty of Berlin (1878) 37Treaty of Lausanne 37Treaty of Sevres (1920) 25, 29, 37, 38, 136Trinidad and Tobago 96Tunisia 16Turkish 32Turkish Empire (see also Ottoman Empire) 26,

29U.S. Supreme Court 149United Nations (UN) 7, 8, 9, 10, 11, 17, 27,

29, 34, 35, 39, 43-44, 51, 52, 54, 58, 59, 61,63, 65, 66, 68, 71, 73, 76, 92, 94, 117, 120,142, 146, 147, 151

UN Ad Hoc Committee on Palestinian Question61

UN Article 108 71UN Article 109 71UN Charter 8, 57, 69, 71, 83, 89, 93, 94, 96,

103, 110, 113, 136, 139, 148, 150, 151, 152UN Charter Articles 72UN Charter, Article 2 73, 170-171UN Charter, Article 10 103UN Charter, Article 12 106UN Charter, Article 22 31fnUN Charter, Article 39 52, 76UN Charter, Article 41 76UN Charter, Article 42 76UN Charter, Article 51 (right to self-defence)

11, 69-73, 75, 76, 77, 88UN Charter, Article 73 118UN Charter, Article 80 38-39, 72, 112, 113,

114, 119UN Charter, Chapter VI (“Pacific Resolution of

Dispute”) 108UN Charter, Chapter VII (“Threats to Peace,

Breaches of the Peace and Acts ofAggression”) 44, 65, 89, 107-108, 150, 151

UN Document A/ES-10/248 (Report of theSecretary-General prepared pursuant toGeneral Assembly resolution ED-10/13)

UN Draft Resolution A/L.519 (1967) 96UN Draft Resolution A/L.521 (1967) 96UN Draft Resolution A/L.522/Rev.3 (1967) 96UN Draft Resolution A/L.523/Rev.1 (1967) 96UN General Assembly 7, ,11 15, 34, 35, 43,

44, 51, 53, 54, 57, 59, 60, 62, 66, 67, 71,73, 91, 92, 93, 95, 101, 102, 103, 104, 105,109, 118, 135, 136, 138, 142, 143, 146, 148,

150, 152UN General Assembly Resolution 183

(“Partition of Palestine”) 10, 18, 19, 34-36,37, 41, 42, 43, 50, 51-68, 100, 145

UN General Assembly Resolution 2625(“Declaration on the Principles ofInternational Law Concerning FriendlyRelations and Co-operation Among States”)74, 173-175

UN General Assembly Resolution 3236 (l974)105

UN General Assembly Resolution 3314(“Definition of Aggression”) 75–77, 83, 93,94, 176-19

UN General Assembly Resolution 3379(Zionism equals racism) 11

UN General Assembly Resolution 38/58 (1983)105



UN General Assembly Resolution 52/164(International Convention for theSuppression of Terrorist Bombing) (1997)80, 81, 82


UN General Assembly Resolution 58/163 (“Theright of the Palestinian people to self-determi-nation”) (2003) 91

UN General Assembly Resolution ES-10/2 102UN General Assembly Resolution ES-10/13 11UN General Assembly Resolution ES-10/248

11UN General Assembly Resolution ES-10L.16

11UN General Assembly’s Sixth Committee 147UN High Contracting Parties 71UN High-level Panel on Threats, Challenges and

Change (2004) 72, 92UN International Law 85-86UN Member State(s) 62, 71, 73, 75, 77, 80,

82, 89, 99, 103, 104, 148, 150UN Partition Resolution 181 see UN General

Assembly Resolution 181UN peacekeepers 119UN Secretariat 59-60UN Secretary-General 48, 62, 92UN Security Council 20, 44, 51, 61, 62, 63,

65, 69, 71, 73, 75, 76, 77, 82, 88, 89, 95,97, 98, 102, 103, 106, 107, 108, 119, 120,148, 151, 152fn

UN Security Council Draft Resolution

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253


S/1997/199 102UN Security Council Draft Resolution

S/1997/241 102UN Security Council Resolution 52/164 77UN Security Council Resolution 53 (1948) 20,

53UN Security Council Resolution 54 (1948) 20UN Security Council Resolution 242 (1967)

97-99, 106-107, 110, 112, 118, 149, 170UN Security Council Resolution 338 (1973)

97-99, 106, 118, 171UN Security Council Resolution 1269 (1999)

82, 150, 162-163UN Security Council Resolution 1368 (2001)

82, 83, 85, 88, 150, 164UN Security Council Resolution 1373 (2001)

77, 82, 83, 88, 89, 92, 150, 165-167UN Security Council Resolution 1377 (2001)

82, 83, 168-169UN Security Council Resolution 1456 (2003)

85UN Security Council Resolution 1515 (2003)

172UN Special Rapporteur 129, 130Union of Soviet Socialist Republics 96United Arab Emirates 16United Arab Republic (see also Egypt) 96United Kingdom 28, 37, 52, 54United Nations Mediator 20, 53, 60, 65United Nations Palestine Commission 52, 65United Nations Special Committee on Palestine

(1947) 35United Republic of Tanzania 96United States 29, 45, 47, 82, 122, 137, 143,

151Venezuela 96Vilayet of Aleppo 40Vilayet of Beirut 40Wadi Araba 27, 117wall (see Isareli security barrier)West Bank 9, 11, 25, 58, 80, 84fn, 88, 90, 100,

101, 102fn, 110, 111, 112, 112, 114, 115,117, 118, 120, 126, 127, 132, 139, 152fn

West Jerusalem 46Western Galilee 55Western Sahara 110, 143Western Wall see JerusalemWhat Weight to Conquest 45fn, 99White House 100Wise, Rabbi Stephen S. 114World Trade Center 77, 82Yale Law School 149Yarmuq River 27Yehuda, A. S. 114Yemen 16, 44, 57, 63Yom Kippur War (1973) 100, 150Yugoslavia 96Zambia 96Zion see IsraelZionism 11, 35, 48, 114Zionist Movement 34Zionist(s) 17, 18, 19, 29, 34, 58fn, 64


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In fact, the International Court of Justice’s Advisory Opinion on Israel’ssecurity barrier merits the same treatment as another shameful UnitedNations document – the 1975 General Assembly Resolution 3379 thatequated Zionism with racism. Israel’s ambassador to the UN, the lateHaim Herzog, tore up that insidious document from the GeneralAssembly’s podium.

255


An ICJ that welcomed the arguments of a master terrorist such asYasser Arafat, but gives no weight to the words and opinions offormer members of the International Court of Justice, and turns adeaf ear to Israeli victims of terror, and that cites conventions,declarations, and resolutions of the General Assembly as a source ofcustomary international law, can only be held in contempt of itsown mandate.

The Truth May Not Always Win, But it is Always Right.


256

TO:

THE ADVISORY OPINION OF 9 JULY 2004I N T H E M A T T E R O F T H E

LEGAL CONSEQUENCES OF THECONSTRUCTION OF A WALL IN THEOCCUPIED PALESTINIAN TERRITORY

A S S U B M I T T E D B Y T H EINTERNATIONAL COURT OF JUSTICE

No distinction rests between genocide and the undoing of the State of Israel by the International Court of Justice at the Hague.

To suggest denying Israel’s right for self-defence in favor of Palestinian terrorism, is a crime against humanity.

SP

INE

Eli E. HertzJanuary 2006

Enhanced EditionMyths and Facts, Inc.

New York

Eli E. Hertz

2006

Mythsand Facts

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Even the most sacred precepts of international law can be manipulated to pervert the truth. In its Advisory Opinion of 9 July 2004, the UN's Interna-tional Court of Justice ruled that Israel's security fence to protect civilian populations from barbarous terror was in violation of international law.

The ICJ ruled that the inconvenience of the fence for Palestinians was more serious than the lives of Jewish children systematically murdered by Palestinian terrorists.

An informed “Reply” to this jurisprudential mockery by the World Court has been prepared by Eli Hertz of New York City. Not a lawyer, Hertz applied his considerable intellectual talents to a meticulously researched and academically refined rejoinder - one that should be read not only by the members of the Court and other UN officials, but also by the broader community of international law scholars.

Eli Hertz has prepared an important and valuable document for all who would seek justice and fairness in our corrupted legal universe. It deserves a wide and very careful reading.

Louis Rene Beres(Ph.D., Princeton University, 1971, International Law)

Professor of International Law, Purdue University

The ICJ advisory opinion on Israel's security fence was a legal travesty denying the people of Israel their inherent right to self-defense and, at the same time, ignoring their historical national rights that the UN and the League of Nations once readily recognized. Eli Hertz has done an enormous service by providing a cogent point-by-point rebuttal and, by doing so, not letting this terrible document stand without a reply.

Ambassador Dore GoldFormer Permanent Representative of Israel to the United Nations

Myths and Facts, Inc. | PO Box 941 | Forest Hills, NY 11375 | www.MythsandFacts.org

US $ 14.95

About the author

Eli Hertz is the President of Myths and Facts, Inc. a nonprofit organization devoted to research and publica-tion of information regarding U.S. global interests - particularly in the Middle East. Hertz published and sponsored books and articles regarding the Arab-Israeli conflict. Most notably are “Partners for Change, How U.S.-Israel Cooperation Can Benefit America” (1993), “Myths and Facts, a Guide to the Arab-Israeli conflict” (September, 2001 edition), and “Who is Humiliating Whom.” A new volume on the Arab-Israeli conflict “Negotiating Over Quicksand - A Realistic Look at the Arab-Israeli Conflict,” is scheduled for release shortly. Hertz is also a recognized pioneer in the personal computer industry. He has authored and published many technology-related articles and books. Marketing Computers, an ADWEEK magazine, stated “Hertz is a barometer for the future.” Hertz is actively involved in numerous international, industry and community associations and panels, and devotes a great deal of time and resources to charity.

This publication uses Internet links extensively. If you experience a broken link, please note the 5 digit number (xxxxx) at the end of the URL and use it as a Keyword in the Search Box at www.MEfacts.com, the primary Search Engine for Middle East facts.